The Theoretical Study On The Initial Interest Confusion Of Trademark

The earliest concept of initial interest confusion of trademark comes from the judgment of USA federal second circuit court in the case "Grotrian, Helfferich, Schulz, Th. Steinweg Nachf. V. Steinway & Sons" on 1975. But at that time, because of the Internet advertising business, e-commerce and other Internet business behaviors are not popular, meanwhile the traditional theory of trademark infringement can play a role on underline trademark infringement cases, therefore, trademark initial interest confusion theory has been in a "sleep" state for nearly 20 years. However, in the 1920 s, due to the large range of the Internet application, the vigorous development of electronic commerce and internet business advertisement and other internet business behaviors, the trademark initial interest confusion theory started to "recovery" and the frequency of using this theory shows significant growth, whether American courts or European union Court begin to admitted initial interest confusion theory. Because the concept of trademark initial interest comes from the court’s decision, the application standard comes from case summary, so the controversy of legitimacy, rationality and the application standards are still exist. The Chinese trademark law and relevant judicial interpretation still do not recognize trademark initial interest confusion theory currently, but the standard of protection in the environment of the Internet and well-known trademark is more and more close to the initial interest confusion theory, Therefore, this paper intents to described the history of the trademark initial interest confusion theory and analysis its legitimacy and rationality the necessity through cases. At the same time, based on the essence of this theory to clarify its uncertainty, clear the applicable standards, provide guidance for the judicial practice.This paper consists of four parts. The first part is the introduction of the history of initial interest confusion of trademark. This part based on the time development,through describing the generation and development process of initial interest confusion of trademark, this paper shows the process of expansion of the theory from “if consumers in the purchase before the confusion of Lenovo would constitute trademark infringement” to USA federal Ninth Circuit Court “as long as there is initial interest transfer, even without any likelihood of confusion”.The second part is the initial interest confusion of trademark dilemma. Since trademark initial interest confusion theory comes from the court decision rather than legislation, the main difficulty is that the applicable standard is fuzzy. In this part, the author will elaborates the problem in the application standards of trademark initial interest confusion from two aspects. On the one hand, through some cases to analysis the standard of trademark initial interest confusion on non-Internet environment. On the other hand, through the "Brookfield Communications, Inc. v. West Coast Entertainment Corp", "Playboy Enterprises v. Welles" and other cases to analysis the using standard of initial interest confusion on the environment of Internet.The third part is critical reflections on the initial interest confusion of trademark. In this part, firstly, the author rethinks the legitimacy of initial interest confusion of trademark. Whether the American “Lanham Act” or the relevant legislation of trademark in European Union, they are both against initial interest confusion theory. Secondly, reflection on the rationality of trademark initial interest confusion theory. Since trademark initial interest confusion theory excessively expands the scope of trademark right, it not only harms the competitors’ normal commercial activities but also greatly limits the non-commercial use of trademark.The fourth part is the reconstruction of initial interest confusion theory. Based on the discussion above, The author puts forward the reconstruction scheme of initial interest confusion. Since the initial interest confusion theory is easy to cause Court put too much emphasis on “interest” while ignore whether the “confusion” exists, the author advise to instead initial interest confusion theory by pre-sale, and specifically pointed out that the factors which needed to attention when judging the pre-sale confusion. Pre-sale confusion doctrine not only protects the legitimate interests of trademark rights, but balances the interest between the trademark owner and the public, prevent the social public interests and normal commercial activities from unreasonably plundering and interfering.