INTA on Initial Interest Confusion
INTA – Initial Interest Confusion
September 18, 2006
INTA recommends that courts recognize that the initial interest confusion doctrine is not separate from a likelihood of confusion analysis. It is simply a timing question as to when confusion occurs, which recognizes confusion that is dispelled before an actual sale occurs may be actionable. Courts should consider initial interest confusion claims, whether in brick and mortar cases or Internet cases, under traditional likelihood of confusion tests and should consider each element of such tests, as well as related defenses, based on the facts of each case.
On September 18, 2006, the INTA Board of Directors adopted a resolution, which was proposed by the Internet Online Trademark Use Subcommittee, recommending that courts consider initial interest confusion using the traditional likelihood of confusion factors. Under the doctrine of initial interest confusion, liability for trademark infringement may be found where the infringing mark causes initial customer interest in a product or service, even if that initial confusion is corrected by the time of purchase. The Board agreed with the Online Trademark Use Subcommittee that, “Clarity and certainty are missing from the existing case law on initial interest confusion.” Indeed, the research conducted by the Online Trademark Use Subcommittee found that some courts do not engage in any analysis of factors in initial interest confusion cases. Initial interest confusions cases in the United States are becoming more common in the context of the Internet, which is why the Online Trademark Use Subcommittee had considered the subject.
The resolution adopted by the Board will allow INTA to provide guidance, particularly to courts in the context of amicus briefs, on the significance and impact of initial interest confusion.
Take it for what it’s worth. I personally don’t really believe in “IIC,” as I have said before. More than once. But getting focus on the use of the doctrine, which isn’t going away, can only be a good thing.