Initial Interest Confusion versus Consumer Sovereignty: A Consumer Protection Perspective on Trademark Infringement
The Trademark Reporter
This article examines initial interest confusion and information disclosure remedies for trademark infringement within the context of FTC consumer protection policy. It first examines the evolution of goals behind trademark law, the development of initial interest confusion, and the types of situations where it has been applied. In addition, it describes the current controversy over disclosure remedies in trademark law generally and their lack of use in initial interest confusion situations. The article next turns to FTC consumer policy and its concern for potential consumer injury, as well as its desire to ensure that consumers have access to information material to purchasing decisions. The final section proposes that courts consider consumer injury and the importance of information when examining initial interest confusion cases. In situations such as most Internet search scenarios, courts should not condemn initial interest confusion because it is easy for consumers to resume their search for the desired brand if they wish to do so. In some situations, however, initial interest confusion should be condemned, because the costs of continuing original brand searches are sufficiently high that a disproportionate number of consumers will likely settle for the advertised brand rather than continue their search.
Consumer Protection Law | Intellectual Property Law
Petty, Ross D. 2008. "Initial Interest Confusion v. Consumer Sovereignty: A Consumer Protection Perspective on Trademark Infringement." The Trademark Reporter 98, no. 3: 757-788.