重新考虑网络上的初始兴趣溷淆ReconsideringInitialInterestConfusionontheInternet.doc

FOR EDUCATIONAL USE ONLY 93 Trademark Rep. 1035 The Trademark Reporter September-October, 2003 Articles and Reports *1035 重新考虑网络上的初始兴趣混淆RECONSIDERING INITIAL INTEREST CONFUSION ON THE INTERNET David M. Klein, Daniel C. Glazer [FNa1] Copyright ? 2003 by David M. Klein Daniel C. Glazer I. INTRODUCTION Courts developed the theory of initial interest confusion (or pre-sale confusion) to address the unauthorized use of a trademark in a manner that captures consumer attention, even though no sale is ultimately completed as a result of any initial confusion. During the last few years, the initial interest confusion doctrine has become a tool frequently used to resolve Internet-related disputes. [FN1] Indeed, some courts have characterized initial interest confusion on the Internet as a distinct harm, separately actionable under the Lanham Act. [FN2] 法院发展了初始兴趣混淆理论以处理夺取消费者注意的商标非法使用，即使完全没有做为初始混淆的结果的销售。在最近几年间，初始混淆原理已经成为常常用来解决网络相关争端的工具。的确，某些法院已经将网络上的初始兴趣混淆描述为“依据《兰哈姆法》独立可诉的截然不同的损害。” This article considers whether the initial interest confusion doctrine is necessary in the context of the Internet. Courts typically have found actionable initial interest confusion when Internet users, seeking a trademark owners website, are diverted by identical or confusingly similar domain names to websites in competition with, or critical of, the trademark owner. A careful analysis of these decisions, however, leads to the conclusion that a distinct initial interest confusion theory may be unnecessary to resolve cases involving the unauthorized use of a trademark as a domain name. In fact, traditional notions of trademark infringement law and multi-factor likelihood of confusion tests may adequately address the balancing of interests required in cases where courts must define the boundaries of trademark owners protection against the use of their marks in the domain names of competing websites. The Federal Trademark Dilution Act (FTDA) [FN3] and the Anticybersquatting Cons