Application Of The Theory Of Initial Interest Confusion In Trademark Infringement

The theory of initial interest confusion is formed with the development of the theory oftraditional confusion. It emphasizes that consumers in the purchase of goods or receivingservices, the infringer use other brand awareness to mislead consumers, making consumersgenerate confusion, although when they in the actual purchase or receiving services, thismisunderstanding has been eliminated, but consumers may still deal with the infringer. In recentyears, initial interest confusion about network trademark infringement occurred frequently, itwas harmful to consumers and legitimated trademark rights in a certain extent, it has destroyedthe balance of legal benefit of Trademark Law’s protection and violated the principle of faircompetition. So it is necessary to use law to regulate initial interest confusion, improving thelegislation system about trademark infringement in our country gradually. This paper discussesthe following parts to expound application of the theory of initial interest confusion intrademark infringement:The first part mainly introduces the generation and development of the theory of initialinterest confusion. First, it defines the concept of confusion theory in trademark infringementand points out the expansion of this theory, leading to the theory of initial interest confusion.Then it introduces the theory of initial interest confusion, the difference between the theory ofinitial interest confusion and the theory of traditional trademark confusion. Then use examplesfrom the United States of America to introduce the development of the theory of initial interestconfusion.The second part analyses whether or not that Trademark Law can lead into the theory ofinitial interest confusion. First of all, it proves the rationality of the theory of initial interestconfusion in three aspects. Then it explains the legal characterization of initial interest confusion.At present, the academic circles have a big controversy of its legal characterization. Somescholars believe that initial interest confusion doesn’t make the consumer ultimately confusion,its essence is not belong to Trademark Law, it should be regulated by Anti-Unfair CompetitionLaw. The second view is that the initial interest confusion of damage to the owner of thetrademark, with the traditional trademark confusion, the difference only in degree but noessential difference, it can be introduced into Trademark Law. I agree with the second view andcarry on the demonstration. The third part expounds the theory of initial interest confusion after introducing it intoTrademark Law, determination of the initial interest confusion possibility. Through introducingAmerican and European Union judicial practice, pointing out some decision factors oftraditional trademark confusion. Then expounds decision factors of initial interest confusion,similarity of trademark, the similarity of goods or services, brand strength, the degree of publicattention.The fourth part mainly elaborates the construction of the system of the theory of initialinterest confusion. First of all, introducing the relevant provisions of the trademark infringementin China, lists in China’s law, judicial interpretation, administrative law and analyses them,pointing out the deficiency of the current trademark infringement system in China: confusion oftrademark infringement, the lack of specific criteria for determining likelihood of confusion,legislative and judicial disjointed, etc. Then put forward the corresponding solutions to solvethese problems, such as changing the value positioning of Trademark Law, putting the“likelihood of confusion” as the judgment standard of trademark infringement, improving thedecision factors of initial interest confusion, etc, to prevent excessive expansion of trademarkright through the improvement of the trademark fair use system, to ensure that the theory ofinitial interest confusion can be applied effectively.