The infringement that never has to say “likelihood of confusion”

Professor Eric Goldman writes about the latest unfortunate development in the extension of “initial interest confusion,” that “infringement” of the Lanham Act that continues the trend eviscerating the doctrine of nominative fair use. Initial interest confusion, which means that no real damages were suffered by the trademark holder, was cooked up mainly by Professor McCarthy (see below regarding “the treatise author as collosus”) and adopted all too eagerly by courts eager to get desired results against “bad guys.”  The effect is to provide a catchall for courts eager to utilize the more draconian aspects of the Lanham Act to punish behavior that has nothing to do with trademark infringement, slanting the already unfortunate abuse of IP litigation profoundly against smaller defendants. Are he and a few others of us tilting at windmills? If you care about trademarks at all, read his whole article. (Note: We have clients involved in unrelated litigation involving one of the parties in the case Eric writes about.)

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Author:Ron Coleman

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