The Study On The Trademark Initial Interest Confusion

The initial interest confusion is a recent development of the trademark confusion theory.It’s only thirty years since its inception. As the network technology continues to update, thetypes of network trademark infringement are increasing, and the initial interest confusionbegins to emerge, which then becomes the primary basis of the United States courts in dealingwith the trademark infringement cases. Currently China has been faced with the dilemma inregulating the network trademark infringements. It is necessary to introduce a newappropriate theory to regulate the new network trademark infringement, so as to continuouslyimprove our trademark theory and to release from the embarrassment of the absence ofapplicable law during courts’ judgments.This thesis mainly introduces the background of the initial interest confusion through theU.S. judicial practices, analyzes the necessity of this theory, and reveals its historical context,the defects of the traditional trademark confusion theory and the limitation of the trademarkdilution theory to analyze the necessity of the initial interest confusion theory. It then makes adetailed analysis of the rules of identifying the initial interest confusion. Based on thecomparison of the study of U.S., EU and Taiwan district in initial interest confusion, it appliessuggestions on whether China should introduce the initial interest confusion or not will beprovided. This paper is divided into six parts:The first part is the overview of the initial interest confusion. At first it briefly introducesthe trademark confusion theory, from the shortage in regulating the trademark infringement tothe concept and character of initial interest confusion and so on. Then the differences betweenthe initial interest confusion about the trademark infringement and unfair competition areillustrated. Ultimately that the initial interest confusion is no doubt the nature of trademarkinfringement would be explicit.The second part details the history of the initial interest confusion over thirty years inU.S. ranging from its liberal attitude of the U.S. legislation in1962to its widely application tonetwork trademark infringement After the Second Circuit Court firstly applied the initialinterest confusion to Grotrian case, the initial interest confusion has not widely aroused theU.S. theorists’ attention. However, the Grotrian case and the Mobil Oil case still lay thetheoretical basis of the initial interest confusion: the harm of the initial confusion is that the perpetrator obtains improper trademark’s goodwill. The Ninth Circuit Court firstly applied theinitial interest confusion to Brookfield case on no actual confusion arising from infringementin meta tags website situations. After that, the initial interest confusion quickly becomes theupstart in the United States Courts in dealing with network trademark infringements.Gradually United States establishes the status of the initial confusion and regulatory methods.The third part expounds the necessity of establishment of the initial interest confusion interms of the inability of the traditional trademark confusion theory and trademark dilutiontheory of trademark in solving the new special trademarks infringement. The traditionaltrademark confusion theory is with shortcomings for its biased protection of interests ofconsumers, impairment of the indicative function of trademarks and the potential consumerconfusion, etc. And the dilution theory has not been generally recognized, and the range of itsapplication is limited to the protection of famous trademarks. Since the existing laws areimperfect, the effective way is to introduce a new theory, as an expedient to solve the existingdifficulties.Part IV as the main part of the article discusses the rules and applications of theidentification of the initial interest confusion. The initial confusion as a kind of trademarkinfringement, shall be identified by the general rules consistent with traditional trademarkinfringements. Firstly, we should prove that the trademark is valid and protective, followedby their actions that constitute the initial interest confusion, this point with reference to"likelihood of confusion" of that rule on the principle of special circumstances specialanalysis, and finally adopt the appropriate rules of identification of the initial interestconfusion. The initial confusion is applied in two circumstances: one is generally applied indaily life, and the other is network applied. And there exists exclusions.Part V is the comparative study on the initial interest confusion with the revelation ofattitude of the U.S., EU and Taiwan towards the initial interest confusion. The sixth part issuggestions on build up our initial confusion theory. Faced with the imperfection of China’sstandards on identifying trademark infringements, the establishment of status of “likelihood ofconfusion” and the adoption of initial interest confusion theory are strongly recommended...