Oh joy, 9th Cir. embraces initial interest confusion again http://t.co/3Zaqg3DuQd Bad ruling over Amazon’s internal search. I’ll blog soon
— Eric Goldman (@ericgoldman) July 6, 2015
Ah, my old friend initial interest confusion. How far back we go! I don’t remember anyone screaming about the way I was when I wrote this piece in 2003, though this article preceded mine by a couple of years. Everyone in the academy who thinks about how trademarks work on the Interne “has to despise” IIC (the law profs call it IIC); the trademark plaintiff’s bar, on the other hand, is addicted to it. There are those who seek a less black-and-white approach, too — which, to be fair, includes INTA per that last link — but it seems that most courts that accept IIC use it without the surgical level of focus that INTA suggests is appropriate.
But no one has been eagerly awaiting its demise more than Eric Goldman, who has pronounced it all-but-dead too many times for his own taste — and, again, mine, since the ups and downs have involved a lot of my own cases. Memories, memories. Some people can just delete them, toss them away like an old rag, but not me. They burn forever!
Sometimes they burn brightly, such as when the Eastern District of New York rejected the doctrine, though without ringing declaration of death, in Ascentive v. Opinion Corp. and Devere v. Opinion Corp. Other times the burn was harsh, as when the Third Circuit relied on it, in part, to keep the complaint of Amerigas against the same defendant just alive enough.
It wasn’t even so long ago that Eric, who has a special obsession with the use of IIC to find a basis for liability in the unauthorized use of metatags by competitors Read More…