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"The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke


[page 283]
1. Initial Interest Confusion

The Plaintiff argues that the likelihood of confusion prong can be fulfilled in this case by resort to a trademark doctrine called "initial interest confusion." Pl.'s Opp. to Mot. to Dismiss at 11 (document # 12). A somewhat ill-defined concept, initial interest confusion refers to a type of pre-sale confusion that has not been fully explored or addressed by the First Circuit.[7] Generally speaking, presale confusion refers to a potential purchaser's temporary confusion about the actual source of goods or services under consideration, even where that confusion is resolved by the actual moment of sale. There is no question that this type of confusion falls squarely within the scope of trademark violations contemplated by the Lanham Act. In fact, the 1962 amendments to the Act explicitly brought presale confusion within the ambit of trademark protections. Lanham Act, 32(1)(a), as amended, 15 U.S.C. 1114(1)(a); Oct. 9, 1962, Pub.L. 87-772, 17, 76 Stat. 773 (removing the term "purchasers" to expand trademark protection to situations involving pre-sale as well as point-of-sale and post-sale confusion). Obviously, bringing pre-sale confusion within the Act did not lighten plaintiffs' burden of showing confusion. They still must show that "an appreciable number of reasonably prudent consumers" would likely be confused about the source of the marketed goods or services at some point during the pre-sale process. See Keds Corp., 888 F.2d at 222-23.

[emphasis added]

 

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