Steve Baird says initial interest confusion is “the real thing” and in the process seeks to “add life” to Professor McCarthy’s famous “evil highway road sign” analogy:
Whatever the criticisms might be to the doctrine of Initial Interest Confusion, including those detailed by our friends Ron Coleman, Marty Schwimmer, and Eric Goldman, in the context of keyword advertising, the road-side restaurant sign shown [at left] definitely is “the real thing” for purposes of trademark initial interest confusion, in more ways than one:
It does depict the Coca-Cola brand, in all its glory, after all, so It’s The Real Thing, by definition.
And, unlike the very hypothetical scenario relied upon in the Wolf Appliance case, the above drive-in restaurant signage is real world and in current use, designed to attract attention, and has been for years, in fact, well after the business responsible for the sign dropped Coca-Cola for Pepsi. That’s right, “no Coke, Pepsi.” To twist Sean Penn’s words in I Am Sam, Wagner’s change was a “very bad choice,” at least in my humble opinion of taste.
Yeah, me too. I used to think I liked Pepsi better. Crazy! It’s one more reason Steve and I are likethis. More:
Last, it certainly is a good example of the Initial Interest Confusion doctrine at work.
Uh oh. Like the old “Coke brings your ancestors back from the dead” story, I’m afraid this sincere run at resuscitating initial interest confusion is a grave error. For now Steve would take us from the brand-laden anecdote and the cultural mix-and-match moment to–as if he were a judge in a Lanham Act case! (some day, I’m sure!)–slapping some poor sap with legal liability over what’s probably just laziness, business logic or a little bit of both. Here’s his real-life tale of interest, initially and heartbreakingly confused:
Minneapolis drivers on Highway 81 pull off the road for a great cheeseburger and a refreshing Coca-Cola, or in my case, Diet Coke. Only to find that there is no Diet Coke, or any Coca-Cola products for that matter, only Pepsi products. Drivers likely aren’t confused at the point of purchase, however, since the menu and interior soda fountain signage refer to Pepsi not Coke. Nevertheless, the exterior sign no doubt has steered more than a few thirsty types off the road over the years to end up purchasing Pepsi products, not Coca-Cola products.
Not me, however, I’m not even initially confused any longer, just annoyed with the change, and deciding with each visit, well in advance, to enjoy a chocolate malt instead of a soft drink, since I can’t have the real thing any longer at Wagner’s Drive-In II.
I’m not the first to say that, unlike a refreshing Coca-Cola® brand soft drink beverage product, this “detour of doom” argument leaves me flat.
Lord, just show me a sign!