Introspection And Remolding Of Trademark Infringement Standards

Intellectual property is divided into three categories: patent, copyright and trademarkright. It is the core competence of modern enterprises; while patent and copyright are theinner forces to push ahead with enterprise’s development. In order to indicate the source ofproducts or service, trademark right is an important sign to distinguish other similarcompanies. Enterprises make a distinction between other competitors by means of trademark,and get reputation and strengths by their products or service. Well-known trademark toenterprise what light to dark night that helps enterprise win in fierce competition. However,with the importance of trademark in competition, many enterprises, which at competitivedisadvantage, use counterfeit trademark to seek economic benefits.The American Judge Hander has said this idea never depend on relief that anyonemislead the public think its commodity is the plaintiff, unless the plaintiff prove this behaviorwill likely lead to this result, or can’t get relief. Prevent confusion is the basic of theTrademark Law, which is on the basis of protecting consumer’s interests. In various countries,the main theory of trademark infringement is confusion theory. However, the standards oftrademark infringement have changed a lot through hundreds of years’ practice. Firstly, thesource of confusion from single expend to affiliation, sponsorship and association (those allcalled Sponsorship confusion). Secondly, the time of confusion has dilated. The traditionalconfusion theory means confusing about the source of products or service when customersactual purchase, namely sale confusion. Now this conception expands to pre-sale confusionand after sale confusion, especially in network trademark infringement disputes. In the newtypes of trademark infringement like Website Meta tags, popup ad and keywords, traditionalconfusion theory has too many problems to deal with, initial interest confusion emerged as thetimes require and yield unusually brilliant results. Last, in order to protect the right oftrademark owner, trademark infringement theory broke the traditional boundaries, incubatingdilution theory which can protect well-known trademarks going beyond one class.With the development of trademark infringement standards, traditional trademarkinfringement theory have gradually revealed incompetent ductility, so that when the new typeof trademark infringement happened, it broke the boundary of traditional confusion theoryconstantly. The aim of this paper is through analyse to find out the disadvantage and put upwith some advices. It can be divided into five parts: The first is analysis of trademark infringement’s basic problems. It will introduce thescope of trademark rights at first. And then analysing the main type of trademarkinfringement. At last,this paper will analyze trademark infringement based on the types.The second part is to introduce concepts of confusion theory, association theory anddilution theory, with their development and internal relations.The third part is to tell the trademark infringement standards under networkcontext——initial interest confusion and its definition, development and main point of view.The fourth part is on the basis of part two and part three, further up to discuss the defectof trademark infringement. Then, through the analysing of the essence of trademarkinfringement is damage the distinctiveness of the trademark. This part will also expound andprove that the central point of trademark law is the owner, and build up the infringementstandards to the possibility of damaging distinctiveness as the core.The fifth part is putting forward some views about trademark infringement standards inChina of positive and negative: the trademark law protects the owner’s interest, the action ofinfringement include all action on damage trademark distionctiveness. At the same time,owner’s right should be limited avoiding overprotection.