미국판례에 나타난 사이버공간에서의 판매전 혼동이론에 관한 연구 -도메인네임, 메타태그, 인터넷광고 등을 중심으로-
A Study of Initial Interest Confusion Doctrine on Cyberspace in U.S Cases - Focused on the Domain name, Meta-tag, Internet Advertisement -
임건면, 이지윤
초록
Initial interest(or "pre-sale) confusion can result from the unauthorized use of trademark in a manner that initially captures consumer attention, regardless of any resulting sale. The infringement can be based on a confusion that creates initial customer interest, even though no actual sale is finally completed as a result of the confusion. Most American courts now recognize the initial interest confusion theory as a form of likelihood of confusion which can trigger a finding of infringement. But even if the marks are almost identical, initial interest confusion is not assumed and must be proven by the evidence. Evidence of actual initial interest confusion is to be de minimis and weak where the goods are non-competitive, expensive and sold to knowledgeable buyers. Some American Courts have applied the initial interest test of infringement to domain names that conflict with a prior trademark. Even though when the user accesses the defendant's site, the user find that it is not the plaintiff's site, the defendant has succeeded in luring users to his site, which often is the defendant's main purpose. A disclaimer on an otherwise infringing web site does not remedy the initial interest confusion which is caused by a confusingly similar domain name. In the domain name case, whether or not the parties compete and actionable harm result is best evaluated through the use of traditional multifactor likelihood of confusion test. A Trademark issue unique to the Internet and cyberspace is the use of “meta tags”, “hidden code”, and “cyber-stuffing”, in which the trademark of another entity is used on a web site in a way that is visually invisible to a human reader but is visible to search engines. The initial interest test has been applied to find infringement when a confusingly similar designation is used in a hidden “metatag” on an Internet web site. American Courts also have recently analyzed initial interest confusion on the Internet in connection with pop-up advertisements or banner advertisement, which appear as a separate browser screens when an Internet user employs a mark as a search engine keyword or types a domain name into an Internet browser. In recent years, Internet search services have offered and sold more and more targeted advertising, through paid advertisement or through search listings that are keyed to users' search terms. These advertising programs have raised the legal issue of whether Internet search service sales of keyword-based advertisements and search listings that use trademarks are violating trademarklaw. Trademark law is never meant to be a property grant to individual trademark holders. Rather, the protection of trademark requires a careful balance of the interests of trademark holders, competitors and public. Viewed in this light, the initial interest confusion doctrine not only encourages the provision of high-quality online services and online communications by prohibiting free-riding, but also safeguards reasonable consumer expectations in reaching desired online services.