판매전 혼동이론의 적용확대와 그 비판

The criterion for considering trademark infringement is based upon the traditional likelihood of confusion analysis. Initial interest confusion theory is related to this analysis. This theory was first adopted thirty years ago in the Grotrian v. Steinway & Sons case. US courts have recently expanded the application of this theory, in particular, in digital environments, for examples, metatag, domain name disputes, pop-up or pop-down advertisement, and keyword and banner advertisements. Based upon initial interest confusion theory, courts hold that defendant commits trademark infringement when consumers might initially, not at the time of selling, be attracted by a competitor’s product or service. Even if not adopted all US courts and commentators, initial interest confusion theory has been championed by many US courts and commentators. Initial interest confusion theory is attractive when applied to some issues in internet, it may cause some problems. It may inappropriately expand the rights of trademark owner, and prevent comparative advertisement. This paper argues that it is appropriate to apply this theory in some cases, but that it argues against too expansive application.