反向混淆理論之研究-以美國法為主

• Main Authors: Chen, SiYu, 陳思伃
• Other Authors: Chen, Wenyin
• Format: Others
• Language: zh-TW
• Published: 2013
• Online Access: http://ndltd.ncl.edu.tw/handle/55772743792539989371

碩士 === 國立中正大學 === 財經法律學研究所 === 101 === In order to achieve the function of our country’s Trademark Law, prohibiting the likelihood of confusion caused by the use of third person have become very important. Practically, we often use the eight factors which published by the Intellectual Property Office to consider whether the situation have constitutes “likelihood of confusion”. But in those factors, we do not separate from the types of confusion. Recently, courts have developed the type of reverse confusion, which occurred when the legitimate prior user’s goods or services became likely to be perceived as those of the junior user. In 1968, U.S. Seventh Circuit, the first Courts of Appeals to address the concept, rejected reverse confusion (Westward case). Then, ten years later, the Tenth Circuit became the first federal circuit court to accept this concept (Big O case). Now, most of the federal circuit courts have accepted the doctrine, based on the belief that “without the recognition of reverse confusion, smaller senior users would have little protection against larger, more powerful companies who want to use identical or confusingly similar trademarks.” Scholars in the U.S., also had a lot of discussion toward the issue. Contrarily, our judicial opinion did not reach the conclusion to this new issue. In Maxim case, courts pointed out that “we should not encourage the strong, powerful companies utilizing promotion or advertisement to cause the consumer confusion.” Though later in adidas case, courts indicated that adidas is a well-known company that consumers can distinguish two marks according to the strong recognition of large company in the market. Two marks co-exist in the domestic trademark. In this thesis opinion, the protection of JUMP may not be enough, and courts seemed not to take the reverse confusion theory into consideration in this case. The issue should come to a positive conclusion, or the normal development of industry and commerce may be hindered. Based on the interpretation of context and the implementation of first-to-register doctrine, this thesis concluded that the type of reverse confusion has already been included in our Trademark Law. Reverse confusion may not occur in some of the Trademark Sections because the constituent elements (for example: well-known) is conflict with this theory.