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.)
September 6, 2010 | 3 Comments
Author:Ron ColemanI write this blog.
The question of whether consumers are likely to be confused is the signal inquiry that determines if a trademark infringement claim is valid. This blog is about trademark law, copyright law, free speech (mostly as it relates to the Internet) and legal issues related to blogging.
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