The Worm Turns on “Initial Interest Confusion”
Two recent developments are worthy of note here. First, the Fourth Circuit reached the right decision in the fight over the jerryfalwell.com website. After nearly ten years of bad decisions by ignorant judges, it is good to see some common sense coming into play. Too bad it is too late to help my former comrade in arms Mike Doughney and his Peta.Org website.
. . .
First, the Jerry Falwell.com case. As the cited article points out, Chris Lamparello uses the domain name falwell.com to criticize Falwell’s position on homosexuality. Falwell won a district court injunction against Lamperello requiring Lamperello to stop using falwell.com because it infringed on Jerry Falwell’s trademark. Much to everyone’s surprise, the Fourth Circuit Court of Appeals reversed. The court found that Lamperello’s site did not infringe on Falwell.
The opinion was a fairly strong win for gripe cites, which the court noted have recently won some good victories in Ninth and Sixth Circuits. The court found that the website in question made clear that it was not affiliated with Falwell in any way, so that no confusion was possible. The court also expressed skepticism about “initial interest confusion” and criticized two very bad cases from the early days of 1998.
“Initial interest confusion” works like this — I use someone else’s trademark to attract your attention, then I sell you my competing product. While not classic infringement, since I have not decieved you into thinking my product _is_ the other person’s product, I have stolen business from the mark holder by using his or her mark.
This doctrine had little currency before the proliferation of the Internet. It was seized upon by a passle of ignorant judges early on who (a) knew they hated the idea that someone other than the commercial mark holder had registered “their” domain name, but (b) couldn’t make out a case for infringement, since just registering a domain name and having it lead to radically different content wasn’t infringement.
So judges came up with this idea that if I, dumb head internet user, typed www.panavision.com and came upon a picture of Pana, Il. instead of the company Panavision, I would become so frustrated with the Internet I would never use it, depriving Panavision of the commercial benefit of my visit. Or so said the Ninth Circuit in Panavision v. Toepen back in the 1990s.
Time goes on and judges eventually catch up with reality. While initial interest confusion might make sense in the context of fungible products, it doesn’t make sense anymore. The _Falwell_ court was critical of early cases such as “Jews for Jesus v. Brodsky,” which found initial interest confusion when someone set up a webpage at jewsforjesus.org that proclaimed “Jews Cannot Be For Jesus! For information about real Judaism, click here” and linking to a website for a traditional Jewish organization. (Jews for Jesus also invented the idea that if your site is non-commercial but links to someone else’s site that encourages a commercial transaction, your use of the website is “in commerce.”)
I’m happy with result but bitter that it took so long and did not come fast enough to help Mike Doughney.