Class 6

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Class 6

• Trademark 4
• Initial Interest Confusion

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Todays Agenda

• An Overview of Initial Interest Confusion
• Modern Problems
• A Way Forward?

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1 An Overview of Initial Interest Confusion
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Review Trademark Theory
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Trademark Law
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Likelihood of Confusion

• Infringement (thus, legal remedy)
• likely
• confusion about source
• among reasonable purchasers
• see, e.g., SleekCraft multi-factor analysis

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Other Protections

• Other Forms of Confusion
• Confusion as to Sponsorship
• Confusion as to Association
• Post-Sale Confusion
• Initial Interest Confusion
• Dilution
• (diminishment of distinctiveness)

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Initial Interest Confusion

• Basic Elements
• Consumer confusion - but not at or near point of
  sale
• Deliberate actions by infringer

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What is the theory for IIC?
Trademark Law
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What are the arguments against?
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What are the arguments against?

• Doesnt fit traditional infringement test
• (lots of things can confuse consumers at times
  before the sale)
• Doesnt undermine basic TM incentives
• Might be TM mission creep
• Might cause confusion

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2 Modern Problems
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lthtmlgtltheadgtlttitlegtTerri Welles
Eroticalt/titlegtltMETA NAME"description"
CONTENT"Playboy Playmate Of The Year 1981 Terri
Welles website featuring erotic nude photos,
semi-nude photos, softcore and exclusive Members
Club"gtltMETA NAME"keywords" CONTENT"terri,
welles, playmate, playboy, model, models, nude,
naked, breast, breasts, tit, tits, nipple,
nipples, ass, butt,"gtltMETA NAME"rating"
CONTENT"adult only"gtltmeta http-equiv"PICS-Label"
content'(pics-1.1 "http//www.rsac.org/ratingsv0
1.html" l gen true comment "RSACi North America
Server" by "terri_at_terriwelles.com" for
"http//www.terriwelles.com" on
"1997.09.09T1402-0800" r (n 3 s 0 v 0 l 0))'gt
How does this (arguably) cause initial interest
confusion?
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Why is initial interest confusion particularly
difficult in the online environment?
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• Technology of Search
• Ease of Embedding Trademarks
• New Business Models
• Very low consumer cost to search/find

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How should we think about IIC in the online
context?
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Playboy v Netscape (9th Cir. 2004)

• At issue keyed banner advertisements.
• How do these banners work?
• What is the business model?

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Playboy v Netscape (9th Cir. 2004)

• At issue keyed banner advertisements.
• What is the theory of confusion?

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Playboy v Netscape (9th Cir. 2004)

• At issue keyed banner advertisements.
• Plaintiffs Expert at least 51 of searchers
• were confused as to source of banner ads.

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Playboy v Netscape (9th Cir. 2004)

• At issue keyed banner advertisements.
• Do these banner ads enhance or detract from
  consumer search?

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Playboy v Netscape (9th Cir. 2004)

• At issue keyed banner advertisements.
• Do these banner ads enhance or detract from
  consumer search?

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Dogan Lemley

• Argue that there are two flavors of initial
  interest confusion
• Traditional Approach
• likelihood of confusion occurring
• before sale, where marks were directly competing
• New Approach
• virtually any diversion away from TM
• owners sites, irrespective of harm/search costs

Do you see this distinction?
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Dogan Lemley

• They argue that there is an important distinction
  between
• deception
• diversion

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(No Transcript)
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(No Transcript)
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2 Ways Forward?
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Ways Forward?

• Lemley Dogan Return to traditional approach
  to initial interest confusion (limit application
  to competitors)
• Key on whether the defendant has a legitimate
  reason to use the mark (comparison, competition,
  etc?)
• Eliminate application in most cases online
  (search costs 0)
• Wait it out.

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Next Class

• Trademark 5
• Trademark Fair Use