Research On Trademark Pre-sale Confusion Theory

Trademark confusion theory is one of the most important concepts in trademark region, and its content becomes more and more abundant with the categories becoming more and more various, as pre-sale confusion is one of them. Traditional confusion is confined to the time of purchase, while pre-sale confusion expands the time prior to purchase. When finding infringement, pre-sale confusion still bases on traditional likelihood of confusion test; however, initial interest was tested by the dispersion of consumers and unfair use of goodwill. Pre-sale confusion is different from dilution.In American the legislators delete the word of purchaser from Lanham Act, which provides lawful possibility for pre-sale confusion. Then courts begin to apply it, and expand to initial interest later. However for fear of overextending rights, some courts begin to limit or abandon initial interest. Due to the particularities of pre-sale confusion, trademark infringement should not be found until the likelihood of confusion of potential reasonable consumers is more than de minimis, and competition exists between doers and right holders, as well as no fair use can be found.Pre-sale confusion is very important. First, the extension of trademark function makes traditional infringement theory unreasonable. Second, pre-sale confusion can promote competition and build a healthy market. At last, numberus clauses of IPR also remand to introduce pre-sale confusion to avoid the abuse of judicial discretion.In our country the finding of trademark infringement is building on article52in trademark law, however the double similar standards have some defects so that make the applying in judicial practice being confused. The impact is quite limited by defining trademark use to confine rights, so this is not a good select as well as there are many controversies about trademark use in our law. At the time of revising of trademark law, we should acknowledge pre-sale confusion first.As a result, it is important to introduce pre-sale confusion when revising the trademark law. We should make a distinction between trademark use to maintain the rights and to consist of infringement. Then make the likelihood of confusion as the standard of founding trademark infringement. After that, we should introduce pre-sale confusion not initial interest to balance the interest between public and rights-holders.