A Research On The Legal Issues Of Trademark Initial Interest Confusion

At the age of highly integrated global economy and rapid development of information technology, as the carrier of corporate quality and credit, trademark has become one of the important parts of corporate core competiveness, as well as intangible asset for the development of corporate. Trademark brings great economic effects. What’s more, the ability of properly protecting the trademark will partially decide whether the national industry of one country can survive and win in the fierce international competitions.As the value of trademark is being recognized broadly, trademark infringement occurs more. The new form of infringement is appearing more frequently and trademark initial interest confusion is among them. Trademark initial interest confusion first appeared in the United States. The modification of Lanham Act makes the regulatory of initial interest confusion has legal basis. Traditional trademark confusion only on the regulation of the actual purchase, and trademark initial interest confusion will extended it to the time before actual purchase, so the traditional confusion theory cannot regulate it. The development of internet information technology particularly causes the increase of trademark initial interest confusion and brings great damage to corporates and market. As a new form of trademark infringement, there is an urgent need to regulate trademark initial interest confusion. For the reasons above, it is necessary to discuss the legal matter related to trademark initial interest confusion.The article consists of four parts:The first part summarizes the concept of trademark initial interest confusion. In the first place, the basic concept and classification of trademark confusion is introduced. What follows is the definition of initial interest confusion, which is one new form of trademark confusion. Then the relating concept is analyzed. In the end, the real case of trademark initial interest confusion is introduced.The second part elaborates the importance of regulating trademark initial interest confusion. It is stated from the aspect of the influence initial interest confusion has towards trademark function and the damage towards Trademark Act. Trademark initial interest confusion hinders the realization of trademark recognition function and credit carrying function, damages the trademark rights and the legal interests of consumers and violates the fair competition market order. For the reasons above, trademark initial interest confusion infringement must be regulated.The third part discusses the standard of defining initial interest confusion. To define whether the usage of a trademark is causing initial interest confusion, firstly whether it is for commercial usage must be cleared, secondly the possibility of causing relating public confusion must be judged, lastly the fair use of trademark shall be excluded.The fourth part is the reflection on the current trademark initial interest confusion regulation of China. From the aspect of national legislation and the current situation of judiciary, it is suggested that in the Trademark Act the act of trademark initial interest confusion is defined clearly as act of infringement and the judging standard of possible confusion is set. At the same time, the mechanism of trademark fair use shall be set in order to better protect trademark.