On The Expansion Of The Theory About The Determination Of Trademark Infringement

How to identify trademark infringement is the core part of Trademark law.However, the study of the theory on the determination of trademark infringement is solittle that it still rest on such facets as the form of trademark infringement,discrimination of confusion and whether it bases on fault or not and so on. Thesestudy of basic theory is favor of deepening the cognition of trademark infringement,but I think the key content about the determination of trademark infringement is thetheory about confusion which is experiencing some little change with the expansion ofthe function of trademark. This paper is just indicating the little change so as toprovide some consult for legislator in the edition of trademark law.The traditional Trademark law is formulated for the purpose of improving theadministration of trademarks,protecting the right to exclusive use of trademarks andencouraging producers to guarantee the quality of their goods and maintain thereputation of their trademarks,so as to protect the interests of consumers andpromote the development of the socialist commodity economy. Accordingly, whetherany confusion or misunderstanding arouses by the consumer as to the source of aproduct or a service, which infringes the interests of the consumer and trademarkowner, is the key factor of identifying trademark infringement. With the developmentof market economy and the rise of network market economy, there comes up so manynew forms of Trademark infringement, such as the infringement on the key word ofTrademark, the infringement on ads of Trademark, the infringement on domain nameof Trademark, the infringement on general web site with the Trademark and so on.However, these new forms of infringement may not cause any confusion for theconsumer in making a decision in a purchase as to the source of a product or a service.Since the traditional theory of confusion is defined as the possibility of confusion inmaking a decision in purchase, it is hard to determine an infringement and therefore to punish it. In this thesis, I try to use the theory of initial interest confusion which isapplied in trail of American court as reference to resolve these new types of Trademarkinfringement, and suggest applying the theory of initial interest confusion to resolvethose covered acts of infringement on Trademark in the internet market Of China.The theory of initial interest confusion is founded and expanded on the basis ofthe traditional theory of confusion, and is the newest development thereof. This newtheory suggests that a consumer is confused before they buy a product or a servicebecause the wrong competitor uses a trademark which is identical or similar to aregistered trademark on the same kind of goods or similar goods to bait and switchthem. A desire to purchase due to such confusion is aroused; however, the consumereliminates such confusion by distinguishing it reasonably when making a purchase.Although the consumer has identified the truth, there still exists much possibility ofpurchase because of the substitute of or much cheaper than the product or service .Thetheory of initial interest confusion, which is just the same as the traditional theory,concerns whether any consumer confusion aroused. The differences between these twotheories lie in two aspects. First, the time point when such confusion is aroused. Thetraditional theory pays its attention to whether any confusion is aroused when aconsumer buys a product or a service, while the theory of initial interest confusionemphasizes the possibility of confusion before a potential consumer buys a product ora service. Second, the protected interest owner of these two theories is different. Thetraditional theory provides protection both to the consumer as well as to the trademarkinterest owner. However, the theory of initial interest confusion emphasizes theprotection for the interests of trademark owner and maintenance of a fair marketcompetitive environment. The purpose of the theory of initial interest confusionaccords with the aim of Trademark law. Thereby, I suggest to legislate the theory ofinitial interest confusion into the third emend edition of Trademark law.This text adopts the method of comparison to analyze the question. It firstlyintroduces the tradition theory of confusion in selling and analyzes its origin andfunction. Secondly, it introduces some new types of infringement on trademark whichcouldn't be resolved with the traditional theory of confusion in selling, and introduces the theory of initial interest confusion, which is applied to resolve the now types ofinfringement on trademark in the trail of American court, and justifies its rationalityand necessity. By comparing the two theories, we can know the merit and flaw ofthem so that we can get a conclusion on the applying area and the condition thereofrespectively.