Initial Interest Confusion
(2013) 8 Journal of Intellectual Property Law and Practice 311
19 Pages Posted: 22 Jan 2014
Date Written: January 20, 2014
Traditionally, trade mark law has focused on confusion which occurs at the time of sale. However, in a number of recent decisions, most notably, Och-Ziff, it has been suggested that pre-sale or initial interest confusion may be actionable under registered trade mark law.
Although initial interest confusion has had a recent ‘moment in the limelight’, there is authority to support its recognition dating back at least a decade. However, one of the main obstacles to the recognition of initial interest confusion is identifying the damage involved. This has caused particular difficulties in relation to passing off. The extent to which initial interest confusion can cause damage, and whether damage is indeed needed for the confusion element of registered trade mark infringement is considered in this context.
Recognition of initial interest confusion has a number of potential applications in both the online and offline world. However, it is argued that judging the merits of initial interest confusion in isolation is too limiting. Instead, any form of ‘operative confusion’, i.e., which has an effect on how consumers behave, should be actionable.
Keywords: trademark, trade mark, internet, initial interest confusion
JEL Classification: K39, O34
Suggested Citation: Suggested Citation