Initial interest confusion (expanded definition)

An expression encountered in US trade mark law, defined in a resolution adopted by the International Trade Mark Association on 18 September 2006 thus:

... a doctrine which has been developing in U.S. trademarks cases since the 1970s, which allows for a finding of liability where a plaintiff can demonstrate that a consumer was confused by a defendant's conduct at the time of interest in a product or service, even if that initial confusion is corrected by the time of purchase.

The doctrine has recently arrived in the United Kingdom: Arnold J applied it in Och-Ziff Management Europe v Och Capital [2010] EWHC 2599 (Ch), where he said:

I shall define "initial interest confusion" as confusion on the part of the public as to the trade origin of the goods or services in relation to which the impugned sign has been used arising from use of the sign prior to purchase of those goods or services, and in particular confusion arising from use of the sign in advertising or promotional materials.

 He derived support for this approach from the decision of the Court of Justice in Case C-558/08 Portakabin Ltd v Primakabin BV [2010] ECR I-0000, where it reiterated what it had said in Case C-278/08 Die BergSpechte Outdoor Reisen under Alpinschule Edi Koblmüller GmbH v Guni [2010] ECR I-0000.

See also bait and switch.