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|Initial Interest Confusion Doctrine|
The Lanham Act (15 U.S.C. Chapter 12 §1125 (d)(1)(B)(i)(V) describes Initial Interest Confusion as:
"the person's intent to divert consumers from the mark owner's online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;"
Courts have held that this applies to the use of a confusing or deceptive web site name and/or the use of trademarked names in meta tags and descriptions in such a way as to divert traffic to a web site, away from the trademarked web site. Some courts have expanded this "doctrine" to include any "initial" interest created by someone. This is judicial activism in action. Interpreting, not expanding, this doctrine is the job of the courts.
Hyperlinking and meta- tag cases illustrate the importance of recognizing confusion that may occur at times other than at the point of sale. For example, when using trademarks as keywords with a search engine, a consumer may be initially confused by the results returned by the search engine; however the confusion may be quickly dispelled by clicking on a returned hyperlink and arriving at the "wrong" Web page, or by simply scanning descriptions of the returned results. Sometimes, it is not clear that the consumer was confused at the "point of sale," and the recognition of confusion at other times is therefore important.
However, the courts have stopped short of prohibiting the use of trademarks completely because of "fair use". A web site can legitimately use them to show those products are being offered as long as the use is not intended to deceive or divert.
In Blockbuster Entertainment v. Laylco, the court stated "[t]he fact that a customer would recognize that Video Busters is not connected to Blockbuster after entry into a Video Buster store is unimportant. The critical issue is the degree to which Video Busters might attract potential customers based on the similarity to the Blockbuster name." The case of Jeff Foxworthy v. Custom Tees, Inc. specifically addresses the distinction in types of confusion, stating "the fact that [the customer] was not 'actually' confused at the point of sale does not change the likelihood that others would associate defendant's [goods] with plaintiff, whether at the point of sale or in the public after sale." The eleventh circuit has also commented on this matter in the case of United States v. Torkington, where it stated that the question is whether the public, not the purchaser alone, would be confused by the use of the mark. These cases suggest that courts may look to post-sale confusion in considering a likelihood of confusion as well as point-of-sale confusion.
Here's an artical by Ivan Hoffman, B.A., J.D., about Initial Interest Confusion In Trademark Disputes that answers more questions.
A Seventh Ciruit decision in favor of restricting the use of meta tags and names on web sites from MBF Law.
A Federal Ciruit decision for the Eastern District of Pennsylvania that rejects the concept of "Initial Interest Confusion".
A long article by ipFrontLine about Initial Interest Confusion.
Initial Interest Confusion: Standing at the Crossroads of Trademark Law , article by Jennifer E. Rothman, Loyola Law School, in the Cardozo Law Review, Vol. 27, p. 105, 2005.
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