Study Of Trademark Infringement Criteria In Cross-Border E-commerce

Cross-Border e-Commerce is developing quickly,volume of amount is also growing in high speed,trademark infringement in e-Commerce occurs frequently.There are different point views refers to the criteria of judging trademark infringement.Even through little case can be searched on the Internet,with the awareness awake of Intellectual Property,more and more people will take the weapon of law to defend their rights.Traditional theory of trademark infringement take "likelihood of confusion" and "use as mark" as two core factors.It may suits well in traditional trade and internal online trade,but when it comes to Cross-Border e-Commerce,something changes.Typical trademark infringement cases in Cross-Border e-Commerce such as keywords advertisement and metatag use can hardly be defined when using confusion standard and use criteria since the purpose of trademark use isn’t to cause confusion with trademark owner,but just misappropriation the goodwill of foresaid trademark.In order to deal with particular situation like this,we should reconfiguration trademark infringement theory.After reading cases and articles from different countries,the author concludes some criteria of trademark infringement.As the Ninth Circuit of American raised a theory "Initial Interest Confusion",which pulls us to consider what the real purpose of trademark law is.In my opinion,to protect the function of trademark should not be ignored.Some scholars hold the opinion that goodwill is the only factor of trademark infringement judgement,as a trademark owner oriented theory.As is known to all,goodwill dose matter in judging a trademark infringement,but not the only criteria.In some circumstances,new registered trademark may not have goodwill but anyone who wants to use this trademark on his own goods would infringe trademark owner’s right.Goodwill theory is a rational theory,but it can not cover all the cases,especially some complicated circumstance.Similar to goodwill theory,professor LI Yu-feng raise the likelihood of distinctiveness of a mark stands theory,in his opinion,this theory would unify likelihood of confusion and anti-dilution theory.It is also an innovation of trademark infringement judgement criteria.However,the deficit is as the some as goodwill theory,when some trademarks were newly registered one,this theory can not protect them.From the author’s point of view,both of likelihood of confusion and anti-dilution theory have advantages and disadvantages.Combined with anti-dilution theory,the author holds the opinion that one should judge a behavior according to function of trademark.Traditional likelihood of confusion is a consumer-orientation theory,so it stress on origin of product.One thing makes sense and can not be ignored is that advertisement and quality insurance are equal important as distinguish source of goods.A step from consumer-oriented to trademark owner-orientation.After reading several cases and articles,study through comparation and analysis,finally,the author realize that only likelihood damage of trademark function is not enough,since reputation and investment differs from trademark to trademark,so essential distinction makes sense.A well-known trademark used in keyword advertisement would be forbidden while some common trademark would be allowed.There is no doubt that trademark law should protect consumers in avoiding confusion,what can not be ignored is that trademark owner also should be protected.Besides,normal market order and fair competition should not be damaged.If parallel import was allowed in one country and goods were not transformed,using of trademark to sell parallel imported products should be taken as granted.By taking likelihood damage of trademark function,we can keep Cross-Border e-Commerce healthy and develops quickly.First part of this article list problems we might encounter if we continue using likelihood of confusion and use as trademark theory.Second part point out defects and characteristics of traditional trademark judgement criteria.Third part of this article analyses some classic questions of trademark infringement in cross-border e-commerce,absorbed anti-dilution theory and other theory then points out we should distinguish well-known trademark from ordinary one.Fourth part give some ideas to prevent trademark infringement in cross-border e-commerce and criteria to judge trademark infringement.