Study On Initial Interest Confusion

Trademark is a mark used to distinguish products from differentproducers. If use of a trademark in commerce is likely to cause confusion,there will be trademark infringement. So likelihood of confusion is thekeystone of trademark infringement. Confusion is that at the point of saletraditionally. However, due to the speed development of economy and vastdiversity of competitive approaches, a kind of new confusion, named“initial interest confusion”, emerges. Initial interest confusion isthat prior to sale and in the absence of any possible confusion at thepoint of sale. The recent proliferation of initial interest confusioncases which is fruit of the prosperity of the Internet is coming to thecentre of attention. At the age of attention economy, it is hard to saythat initial interest confusion is of no harm, whatever to trademark owers,consumers or order of the whole market.However, in the context of the Trademark Law in China, we don’t knowwhether initial interest confusion is actionable under the Trademark Law,and how to deal with initial interest confusion. So it is of importantceto study what is the nature of initial interest confusion, determinewhether it is anctionable under the Trademark Law in China, and summarizethe factors which are used to examine whether there is a likelihood of initial interest confusion.PartⅠindicates, in theory, whether initial interest confusionshares the same nature with traditional confusion which is at the pointof sale. If initial interest confusion is the same with traditionalconfusion in nature, it can be actional under trademark law. On the basisof comparison between initial interest confusion and traditionalconfusion, this part explores the similarities and differences bewteenthem, and analyses whether those differences are all substantial oneswhich are enough strong to differeciate initial interest confusion andtraditional confusion.Part Ⅱexamines whether initial interest confusion is actional underthe Chinese Trademark Law in force. This part firstly makes an inquiryon whether a likelihood of confusion is the touchstone of trademarkinfringement in China legislatively and judicially, then tries toestablish a multi-factor test to determine whether there is a likelihoodof initial interest confusion in the court.Part Ⅲ explains the relationship between the Trademark Law andCompetition Law in the context of initial interest confusion. Unlike theLanham Act, the Trademark Law and Competition Law in China are two separatelaws. While they overlap each other on the protection of registeredtrademark, it is vital to clarify the relationship between the ChineseTrademark Law and Competition Law in the context of initial interestconfusion.