Research On Initial Interest Confusion Theory

Trademark confusion theory is identified as the most basic theory in trademarkinfringement, which has been continuously expanded by the various changing formsof trademark infringement acts. Initial interest confusion theory, as one of theexpansions of traditional confusion theory, maintain that the act that causes theconsumers confuse in the time prior to purchase decision should be regarded astrademark infringement as well. In recent years, people have been paying moreattention to this theory as the Internet provides a new platform for improper use ofothers’ registered trademarks. As far as our country is concerned, initial interestconfusion theory is not recognized in trademark legislation at present，besides, whennew types of trademark infringement disputes arise, judicial practices in China face adilemma because of a lack of applicable law. In this paper, based on the demonstrationof validity of initial interest confusion theory from multiple angles, I analyze theapplicable and reasonable rules when applying initial interest confusion theory byreferring to and criticizing domestic and international judicial related cases.Ultimately, in the context of the third revision of the Trademark Law of China, thispaper is to put forward legislative proposals to improve the Trademark Law of China.This paper is divided into four specific chapters.Chapter I is to trace the origination of initial interest confusion theory. Throughanalyzing realistic background, legislation and judicial cases related to initial interestconfusion theory, I will demonstrate how this theory generate and develop inexpanding traditional trademark infringement theory. Chapter II is the analysis of the foundation of initial interest confusion theory.Initial interest confusion theory has value bases on the Trademark Law in a number ofways. Despite the fact that Anti-Unfair Competition Law provides fallback protectionfor the improper use of another’s registered trademark, the act that causes consumersconfused in initial interest is no longer a kind of unfair competition but trademarkinfringement.Chapter III is the exposition of the applicable rules based on the initial interestconfusion theory. It is still essential to meet two requirements when judgingtrademark infringement: commercial use of another’s trademark and the likelihood ofconfusion in consumers’ initial interest. This chapter will demonstrate how the tworequirements be applied by means of case analysis in different fields of infringementdisputes. Besides, some restrictions is necessary to guarantee the right of trademarkowner within a reasonable range.Chapter IV is proposal for improvement of China’s trademark law. China’sjudicial status reflects the problem caused by the lack of legislation, so our basicTrademark Law should be clearly identify likelihood of confusion as the core oftrademark infringement and initial interest confusion should be recognized intrademark legal system. Related limitation system should be improved as well.Mainly through comparative studies and empirical research methods, this paper’sinnovation reflects in: First, the domestic research focused on the introduction of U.S.cases but lacked critical thinking. This paper, on the basis of the reference to the U.S.cases, analyze initial interest confusion theory according to specific fields oftrademark infringement and hold that this theory could not apply to all network fieldsof trademark infringement. Second, the domestic research pay little attention toChina’s judicial practice thus lack specific legislative proposals. By analyzing a seriesof typical cases in China and point out the absence of legislation，this paper makespecific suggestions for improvement of trademark legislation in China.