With social media, The rise of influencer marketing and promotions, Reverse confusion (reverse confusion) Theory developed rapidly in India.

The theory of positive confusion usually applies to later trademark users (Usually a small entity) Adopt or begin to use a known trademark of an established large entity, Make money on its goodwill. The difference with positive confusion is that, Reverse confusion represents a situation in which later users overpower earlier users and obscure their reputation through special marketing and promotional activities.

It's understandable, Reverse confusion can have a huge impact on markets, Because consumers who buy goods or services from earlier users come to believe that those later users provide those goods or services——So recently the theory has been gaining traction in India.

The first famous international case of reverse confusion theory

1976 years, A smaller tire company in Colorado, USA Big O Tire Dealers, Inc (Big O) V. American multinational tire manufacturer Goodyear Tire & Rubber Co (Goodyear) After this widely known US trademark case, The theory of reverse confusion first attracted international attention.

1974 years, Goodyear uses it in its tires "BIGFOOT" trademark, This is related to "BIG FOOT" Bear a close resemblance, while Big O Already have "BIG FOOT" The prior right of the trademark.

Goodyear then launched a massive publicity and advertising campaign, To promote their products, And successfully associated the company with the new trademark, Attracted a lot of customers. It's understandable, Consumers soon became confused about the trademarks of the two competitors.

When the dispute reached federal District Court in Colorado, Big O There's no proof that Goodyear intended to use it "BIG FOOT" Trade the goodwill of the trademark. On the contrary, Through consumer research, Goodyear proof, Those who buy use it "BIGFOOT" Consumers of trademark tires consider Goodyear to be their only source.

Court determination, Goodyear's multimillion-dollar marketing campaign gives consumers reason to wrongly believe Big O Stole Goodyear's "BIGFOOT" trademark. therefore, In an unprecedented ruling, The court recognized and enforced the principle of reverse confusion, adjudication Big O Obtained by Goodyear for disparaging its trademark and reputation 1960 A $10, 000 settlement, And directed Goodyear to stop its trademark infringement.

To determine the reverse obfuscation principle, American courts have developed a case-based multifactor test, The following factors are considered:

－Influence of trademark;

－Similarities between trademarks;

－The likelihood of actual confusion;

－The intent of the infringer;

－The possibility of product line expansion; and

－Marketing spend designed to measure brand awareness, Evidence from sales and consumer surveys.

The defense of reverse confusion

For the reverse obfuscation policy, A common defence used by later users is to claim ignorance of the prior user's trademark at the time of entry into the market. Such as, in Walter v Mattel, Inc In the case, The defendant successfully used this strategy.

The theory of reverse confusion is gaining popularity in India

There are few examples of reverse confusion in Indian jurisprudence, though, But this theory is gradually being taken seriously.

2001 years, The Delhi High Court is in Allianz Aktiengesellschaft Holding v Allianz Capital and Management Services Ltd That principle was recognized and enforced in the case.

In the case, plaintiff Allianz Aktiengesellschaft Holding It's a German company, Since the 1989 Since these years, The company has been using it in its investment and insurance services "Allianz" trademark. In the defendant Indian company Allianz Capital and Management Services Ltd Decide to use "Allianz" Replace it in the company name used in India "Asthan" after, The German company filed a request with the Delhi High Court.

The court held that, Because the German company does not carry out insurance business in India, It cannot therefore be assumed that the Indian company or its assignee would pass off its services as those of the former. On the contrary, Consider the reputation the Indian company has earned in businesses other than insurance, The potential for reverse chaos is greater. To prevent this from happening, The court allowed the German company to be used in the insurance business and in the business of non-bank financial companies "Allianz" One word, But it is banned from using the term in its investment and financial services sectors.

In another interesting case, namely AZ Tech (India) v Intex Technologies (India) Ltd case, plaintiff AZ Tech (India) Claim against the defendant Intex Technologies (India) Ltd Used in mobile phones "AQUA" A temporary injunction is issued on the conduct of the trademark. The plaintiff argued that it had 2009 Adopted the trademark, Accused in 2012 Mistakenly and fraudulently adopted its trademark at the end of the year (AQUA) , To pass off its goods as the plaintiff's products. The sole judge of the Delhi High Court held that, The plaintiff has established strong prima facie evidence for its prior use and goodwill, And granted an injunction in their favor.

however, An appeal against the defendant, The panel of judges disagreed with the decision. The defendant argues that he was 2012 years 8 The month was honestly adopted and launched "AQUA" Brand mobile phone, Without knowing in advance AZ Tech the "AQUA" product——The product was not available in the Indian market at the time the defendant introduced it. On the contrary, The plaintiff claims that the defendant caused reverse confusion.

The court said:

To determine whether the principle of reverse confusion is met, There must be conclusive evidence that the defendant acted "AQUA" The so-called post-user of the trademark, Can conceal the goodwill and reputation of the plaintiff as an alleged prior user of the trademark. Even after preliminary consideration, There is no such evidence. In addition, In order to "INTEX" The addition of words for the form of words is so prominent and unique, To eliminate any possibility of initial confusion.

therefore, The court held that, If an injunction is granted or continued, Will cause irreparable damage to the defendant.

Look to the future

The concept of reverse obfuscation can be provided by a well-tested defense of prior use "loophole" To change the rules of the game.

Later users can use their extraordinary presence and visibility in the market to overwhelm the prior trademark owner. however, If an earlier user can prove that the later user has understood and willfully disregarded its rights to make a claim of reverse confusion, Then the concept of reverse confusion fails, Post-users may face severe penalties.

Whether this theory will continue to gain traction in trademark disputes across India, Remains to be seen. (Be compiled from www. worldtrademarkreview. com)

TRANSLATORS: Wang Dan　proofread: Rason group

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