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Initial interest confusion

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Overview Edit

Initial interest confusion,

which is actionable under the Lanham Act, occurs when a customer is lured to a product by the similarity of the mark, even if the customer realizes the true source of the goods before the sale is consummated.[1]

It is a "bait and switch" tactic that permits a competitor to lure consumers away from a service provider by passing off services as those of the provider, notwithstanding that the confusion is dispelled by the time of sale.[2]

On the Internet Edit

Initial interest confusion has been defined as “the use of another’s trademark in a manner calculated ‘to capture initial consumer attention, even though no actual sale is finally completed as a result of the confusion. . . .’”[3] "[A]ctionable initial interest confusion on the Internet is determined, in large part, by the relatedness of the goods offered and the level of care exercised by the consumer."[4]"[I]n the absence of these factors [i.e., product relatedness and level of care], some initial confusion will not likely facilitate free riding on the goodwill of another mark, or otherwise harm the use claiming infringement. Where confusion has little or no effect in the marketplace, it is of little or no consequence" in establishing initial interest confusion.[5]

References Edit

  1. Promatek Indus., Inc. v. Equitrac Corp., 300 F.3d 808, 812 (7th Cir. 2002) (full-text).
  2. Vail Assoc., Inc. v. Vend-Tel-Co., Ltd., 516 F.3d 853, 872 (10th Cir. 2008) (full-text).
  3. Brookfield Comm., Inc. v. West Coast Entertainment Corp., 174 F.3d 1036, 1063, 50 U.S.P.Q.2d (BNA) 1545 (9th Cir. 1999) (full-text) (citation omitted).
  4. Interstellar Starship Servs., Ltd. v. Epix, Inc., 304 F.3d 936, 945, 64 U.S.P.Q.2d (BNA) 1514 (9th Cir. 2002) (full-text).
  5. Checkpoint Sys., Inc. v. Check Point Software Tech., Inc., 269 F.3d 270, 297, 60 U.S.P.Q.2d (BNA) 1609 (3d Cir. 2001) (full-text).

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