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


[page 292]
Several courts of appeals have found initial interest confusion and post-sale confusion actionable under the Lanham Act. We agree and hold initial interest confusion is actionable under the Lanham Act. We also hold the District Court properly evaluated the evidence of initial interest confusion and did not clearly err in finding this evidence did not weigh heavily in favor of finding likely confusion. We first turn to a discussion of the relevance of initial interest to Lanham Act claims.


[page 295]
Congress recognized the relevance of initial interest confusion and its effect on a company's goodwill when it amended the Lanham Act in 1962. In its original form, the Lanham Act only applied where the use of similar marks was "likely to cause confusion or mistake or to deceive purchasers as to the source of origin of such goods or services." Esercizio v. Roberts, 944 F.2d 1235, 1245 (6th Cir.1991) (quoting 1946 Lanham Act.) (emphasis added). In 1962 Congress deleted the term "purchasers," affording Lanham Act protection where a mark is "likely to cause confusion or mistake or to deceive." Id. Several courts have found the amendment expanded the reach of the Lanham Act beyond mere purchasers to recognize pre-sale confusion as well as post-sale confusion. See, e.g., id. ("Since Congress intended to protect the reputation of the manufacturer as well as to protect purchasers, the Act's protection is not limited to confusion at the point of sale."); Koppers Co. v. Krupp-Koppers GmbH, 517 F.Supp. 836, 843-44 (W.D.Pa.1981) (holding Congress intended to broaden the scope of protections with the 1962 Amendment to the Lanham Act); see also 3 McCarthy on Trademarks & Unfair Competition, 23.7 ("In 1962, Congress struck out language in the Lanham Act which required confusion, mistake or deception of `purchasers as to the source of origin of such goods and services.' Several courts have noted this expansion of the test of infringement and held that it supports a finding of infringement when even non-purchasers are deceived."). We agree with the view that Congress's amendment of the Lanham Act in 1962 expanded trademark protection to include instances in which a mark creates initial interest confusion.[21]

 

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