The Study On The Infringement Of Trademark Pre-sale Confusion

In the time of attention times, renown of trademark becomes more and more important, and the ways that infringement of trademark are various. Someone would like to take the advantage of pre-sale confusion to make profit. Our attention is seldom on the pre-sale confusion before, but for the benefit of trademark owner and consumers, it's the time to take action now. Pre-sale confusion happens when consumers aren't actually confused at the moment of point of sale, but are misled by way of bait and switch.By way of the studying legislation and legal practice of American ,we introduce the concept of Pre-sale confusion and its characteristic. Then turns to a jurisprudence analysis. From this point, this paper make an analysis regarding confusion-based theory and dilution theory. As for confusion-based theory, consumers was confused as to the origin of goods or service before actually contacting the goods or service, thus consumers'benefit is hurt. After consumers contacting merchandise, although not confused, the trademark is diluted by the pre-sale confusion. Pre-sale confusion is bound to undermine the reputation of trademark owner. The paper discuss fair use as the counter argument of pre-sale confusion. We think fair use should applies in the background of descriptive use, for example in the cases of playboy v. Terri Welles and applies in the background of indictive use, for example in the BMW case. The paper also make an analysis of elements and legal liability of pre-sale confusion. The conclusion is that although Chinese trademark make a list of types of infringement and doesn't mention pre-sale confusion in the words, it leaves this area to be defined by law.