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Research On Introduction Of Initial Interest Confusion Theory Into Chinese Trademark Law

Posted on:2017-04-30Degree:MasterType:Thesis
Country:ChinaCandidate:H JinFull Text:PDF
GTID:2296330482493720Subject:Intellectual property law
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As China’s economy is becoming more opened and more internationally integrated, business culture and business rules are also converging with the international standard, so are the fast-growing Internet industry in China, accompanying with the attention to the intellectual property rights. Trademark, following the ancient kernel of Writings Are for Conveying Truth, has derived many patterns of manifestation in line with the current business development. The increasingly attention paying to the trademark right by enterprises is a typical and representative economic development trend and inevitable choice. Sparks generated by the collision and integration of the Internet and intellectual property rights will bring changes to the economic environment and also give opportunities to impetuous and utilitarian profiteers. In this way, several new forms of trademark infringement can be resulted in and these newer forms of trademark infringement would have many problems of legal application under the provisions of existing laws and regulations, which can also contribute to the development of trademark confusion theory to constant consummation.In the 60 s of the last century, the initial interest confusion theory emerged in the United States. This theory mainly focuses on consumers’ confusions before purchasing which are still regarded as trademark infringement behaviors. Due to gradually increasing illegal use of others’ trademarks and business reputations with the Internet as a platform in recent years, the initial interest confusion theory has attracted growing attention. At present, China does not directly introduce this theory in legislation, but the judicial practice has been much closer to the core content of initial interest confusion theory and its applicable standards have been discussed gradually. Therefore, the author intends to expound the theory’s intrinsic value through the existing cases and recessive new types of trademark infringement phenomena and study the theory’s applicable possibility in China’s judicial system.This paper will study and demonstrate the feasibility of introducing the initial interest confusion theory into China combined with lessons and comments of domestic and foreign legal precedents in allusion to the applicable conditions of initial interest confusion theory and its realistic violations. Based on this, corresponding countermeasures will be put forward to perfect the law. The context of the research is as follows: Chapter 1 expounds the connotation of the initial interest confusion theory and its generation background and elaborates the emergence and evolution course of the initial interest confusion theory through the interpretation of practical cases in the United States. Chapter 2 mainly focuses on penetration of the initial interest confusion theory into new trademark infringement phenomena, enumerates and analyzes respectively from cases that have appeared in today’s judicial practice to demonstrate that there are legal application issues for courts in the face of the new types of trademark infringement cases. Meanwhile, judicial decision reasons are closer to the connotation of initial interest confusion theory. In addition, this paper also discusses recessive trademark infringement phenomena from the development of the current e-commerce and We Chat Official Accounts, We Media and other diversified forms of Internet infringement and provides realistic foundation of rigid needs to the introduction of initial interest confusion theory into China’s judicial system. Chapter 3 demonstrates the rationality of introducing the theory of initial interest confusion into China from three perspectives. First of all, it draws the conclusion that the initial interest confusion has value basis for the trademark law in several aspects from the theoretical basis of initial interest confusion. Second, it concludes that consumers’ initial interest confusions caused by the use of others’ trademark rights are not acts of unfair competition but trademark infringement behaviors. Finally, it comes to the legitimacy of the theory introduction from analysis of advantages and disadvantages of introducing the theory of initial interest confusion. Chapter 4 analyzes rules that initial interest confusion theory abides by while applying to it. If the doer’s act is confirmed to be trademark infringement by using this theory, analysis also should be conducted with objective conditions of trademark confusion. This chapter also discusses consideration factors applicable to this theory from three levels and expounds subject range and grounds of opposition under the applicable situation of initial interest confusion theory. Chapter 5 puts forward suggestions to China’s introduction of the initial interest confusion theory. China should list the initial interest confusion into the category of confusion in the trademark legal system, expand the time limit of infringement decision in the trademark law, establish the trademark use system and rationally use the defense system. The innovation in this paper mainly manifests as follows. Firstly, at present, less attention is paid attention to research on initial interest confusion theory after the implementation of the domestic new trademark law and there is lack of specific analysis of the regulation of the Internet trademark infringement phenomenon. This paper makes refining summary of a series of typical cases in the judicial practice in China and puts forward practical suggestions on the basis. Secondly, this paper illuminates new forms of recessive trademark phenomena under the background of the new trademark law implementation. The realistic basis of the initial interest confusion theory research has been more strengthened in view of the phenomena proposed in this paper.Laws and regulations will be increasingly perfect and the commercial environment will also become more and more mature, which would give play to the value of the trademark to a greater degree. Research on the initial interest confusion theory also conforms to the economic development of the times and will further extend the role of the trademark confusion theory.
Keywords/Search Tags:Initial Interest Confusion, New Trademark Infringement, Trademark Infringement
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