Research On Regulation Of Trademark Initial Interest Confusion

The information conveyed or embodied by the trademark of the goods or services carries the goodwill of the enterprise.The advertising expenses and after-sales service invested by an enterprise in its products or services are reflected by goodwill.By improperly using the reputation carried by the trademark owners,the perpetrator attracts potential consumers of the trademark owners to divert attention from the trademark owners to their goods or services.The Unfair Competition should be regulated since the act harms the potential interests of the trademark owner and increases the search costs of consumers.Although the term is called initial interest confusion,there is no possibility of likelihood of confusion while purchasing.It refers to the fact that the perpetrator uses the registered trademark of others to promote their goods or services,but when people enter the context set by the perpetrator,they can clearly distinguish the goods or services or the ownership of the registered trademark.This is significant different from the likelihood of confusion in trademark law.For the trademark initial interest confusion,due to the lack of a unified theoretical basis and no unified law and regulations up till now,conflicting judgments in similar cases have occurred from time to time.This article analyzes the historical evolution,independence,and legitimacy of the initial interest confusion activities and classifies them by comparative research and empirical research,and constructs the regulatory model of the initial interest confusion activities.This article is divided into six chapters with more than 170,000 words.The introduction mainly introduces the background of the topic selection,the status quo of domestic and foreign research,the significance of topic selection,research methods,and innovation points.The first chapter describes the historical evolution of initial interest confusion.Firstly,it introduces the basic theory of initial interest confusion,distinguishing the relationship between initial interest confusion and the likelihood of confusion.From the perspective of the legislative purpose of Trademark Law,initial interest confusion is not the likelihood of confusion in Trademark Law,therefore,it’s not the actual confusion.The reason is that the likelihood of confusion in the Trademark Law only refers to the confusion in the sale,that is,when the consumer purchases,this kind of confusion will reduce the function of identifying the source of the trademark.However,the initial interest confusion occurs in the selection stage before the formal purchase.When it comes to purchasing stage,consumers can identify the source of the goods or services,and the trademark’s source identification function has not been impaired.This chapter focuses on the analysis of the case study of the initial interest confusion in the United States,from the historical evolution of the initial interest confusion to typology,etc.,and explores the development of initial interest in the United States,the European Union,and China.The second chapter focuses on the necessity of independent regulation of initial interest confusion.Firstly,it analyzes the relationship between the trademark infringement judgment criteria and the initial interest confusion,which concludes that the traditional trademark infringement judgment criteria such as identical or similar criteria,likelihood confusion,and usage criteria cannot apply to the initial interest confusion appropriately.Then it reviews the limitations and expansion of the likelihood of confusion and discusses the limitations and inappropriateness of expansion likelihood of confusion in the dimensions of time expansion,content expansion,subject expansion.Finally,it discusses the significance of the independent regulation of initial interest confusion and responds to the controversial issue of the regulation of initial interest confusion in the academic circles.After exploring the functional distinction between the Trademark Law and the Anti-Unfair Competition Law,the difference between the regulation modes of the Trademark Law and the Anti-Unfair Competition Law,and therefore concludes the significance that the initial interest confusion shall be regulated independently in the Trademark Law.Chapter Three demonstrates the legitimacy of the initial interest confusion activities’ regulation.Through the analysis of the interests of trademark owners,the interests of consumers,and the order of market competition,it concludes the regulation of initial interest confusion is reasonable.From the perspective of the trademark proprietor,the regulation of the initial interest confusion activities curbs illegal use of the trademark proprietor’s goodwill by others,which is conducive to protecting the goodwill of trademark proprietors;at the same time,this regulation also has a limit,that is,there is a loss of potential customers of trademark proprietors indeed.As for consumers,the rapid economic development in the Internet era and the information explosion of algorithms make them spend more energy than before when choosing goods or services to purchase,thus it’s more important to save time and cost when consumers choose goods or services.To restrain initial interest confusion activity can save consumers’ search costs,prevent confusion and misunderstanding of consumption,and improve consumer shopping efficiency.For market order’s aspect,since the nature of the initial interest confusion activities is to trademark owners’ goodwill to promote one’s goods or services,this kind of activity doesn’t cause substantial damage to the owner’s rights,but it disrupts the market competition order.It belongs to act of unfair competition and shall be regulated by the Anti-Unfair Competition Law to ensure the prosperity and development of the socialist marketing economy.Chapter Four elaborates the initial interest confusion activity’s regulation models.Through the comparative analysis of the infringement regulation mode,the Tort Law Regulation mode,the Trademark Regulation mode,and the Anti-Unfair Competition regulation mode,it is concluded that China shall choose the regulation model of the AntiUnfair Competition Law.The first type of the Tort Law Regulation model is mainly based on the regulation of tort law in Civil Law.However,it is difficult for judges to apply an accurate standard because of its wide scope.The deficiency of the second type of Trademark Law Regulation mode mainly lies in the limitation of expansion of trademark likelihood of confusion theory,and then it is concluded that the theory and rules of trademark likelihood of confusion cannot be applied to the initial interest confusion.The third type of Anti-Unfair Competition Law Regulation model is more appropriate to regulate initial interest confusion for the following reasons.First,the biggest difference between initial interest confusion and the traditional likelihood of confusion theory is that the initial interest confusion does not cause actual confusion,but all the infringements in the Trademark Law have violated existing trademark rights,on the contrary,the initial interest confusion did not cause actual damage to the trademark right.As a result,the initial interest confusion should not be included in the scope of trademark regulation.Secondly,there are different types of initial interest confusion activities.If there is no derogation to trademark owner’s potential users,it won’t cause a loss to the trademark owner.Therefore,the initial interest confusion doesn’t need to be regulated in the Trademark Law.Thirdly,regulatory confusion in the Competition Law can be divided into two categories: one is a typical trademark infringement,which causes confusion about the source and business channels of goods or services,and reduces the identification function of a trademark.The other which doesn’t cause derogation to trademark identification function should be deemed as proper use of the trademark instead of trademark infringement,it should be regulated by the Unfair Competition Law.Chapter Five analyzes the details of judgment standard of the initial interest confusion activities.It introduces the standards of the initial interest confusion and proposed six factors to judge the activity of initial interest confusion: the strength of the mark,the substitutability of the goods or services,the potential interests of the trademark owner,degree of care likely to be exercised by the purchaser,the subjective intention of the perpetrators,and other factor.The stronger impact the mark has,the greater the goodwill it carries,and the higher possibility of being remembered by the public,that is,it is more likely to be improperly used by the perpetrator and easier to cause initial interest confusion.The substitutability of goods or services refers to the fact that the goods or services of the perpetrator are identity or similarity to those of the trademark owner.Consumers can purchase the goods or services of the perpetrator and also may purchase trademark owner’s good or services.In terms of the influence of the potential interests of the trademark owner,due to the substitutability of the goods or services,its potential customers are more likely to be attracted.The degree of attraction to the purchaser is closely related to the value of the goods or services they want to buy.There is a huge difference in consumer attraction according to different prices,the higher the value of the goods or the service,initial interest confusion is more likely to happen,and vice versa.The subjective intent of the perpetrators refers to the intention of the perpetrator to implement the activity of initial interest confusion.At the same time,in order to improve the operability of judicial practice,this article also proposed the judgment process of initial interest confusion.This article also analyzes the exceptions to the regulation of initial interest confusion activity and holds that nominative use and explicit expression behavior do not deems to initial interest confusion activity and shall not be regulated.Chapter Six constructs the regulation of the trademark’s initial interest confusion activity in China.From the discussion in the previous chapters,it is concluded that China shall regulate initial interest confusion activity.This chapter analyzes the current situation of the initial interest confusion activity regulation system in China,reviewing the research on the status of legislation and jurisdiction practice.After targeted analysis on the different judgment in various fields such as keywords and Internet platforms,QR codes,it is believed that the deficiencies of the initial interest confusion activity regulation system in China fall into two aspects: one is the unclear boundary between the Trademark Law and the Anti-Unfair Competition Law,the other is the lack of legislation in the Anti-Unfair Competition Law.In view of the above deficiencies,the article will provide suggestions on the improvement of China’s initial interest confusion regulation system.On one hand,it is recommended to add initial interest confusion into Article 6 of the Anti-Unfair Competition Law;on the other hand,it is suggested to include Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Civil Cases of Unfair Competition as the consideration factors of the initial interest confusion activity to construct the regulation of China’s initial interest confusion in the level of legal and judicial interpretation.