This is Part XV of our ongoing series on the “Fundamentals of Trademarks,” where a number of continuing blog posts have been dedicated to exploring trademarks in detail & depth. In Part XIV, we started our discussion on the five key aspects of trademark enforcement, including “Dilution,” “Initial Interest Confusion,” “Reverse Confusion,” “Likelihood of Confusion,” and “Standing to Sue.” In this regard, we started with the first aspect in Part XIV under the blog post titled “The Dilution Law and its Role in Trademark Enforcement” and promised to hammer on reverse confusion as the second key aspect in trademark enforcement.
Initial Interest Confusion/Reverse Confusion and its Role in Trademark Enforcement
Sometimes, the use of a given mark confuses customers as to whether the junior user is affiliated with or the source/origin of the senior user’s products. Due to this issue, courts in many jurisdictions have used the “reverse confusion” theory in attempts to establish trademark infringement. While a larger sales volume from the junior user creates the confusion that leads to the loss of the mark’s value to the senior user, the senior user is typically much smaller than the junior user in reverse confusion cases.
Additionally, the concept of “initial interest” confusion is also closely related to reverse confusion and acts as another form of actionable infringement. Technically, “initial interest” confusion occurs when the use of a confusingly similar or identical mark by a third party is aimed at getting potential patronage and the attention of consumers. One interesting thing to note is that this form of confusion happens on the internet, where consumers are initially confused and directed to an unintended website following a search on the internet. In most cases, even if the third user ultimately corrects the confusion prior to purchase, this form of confusion is still actionable.
In the next blog post and Part XVI of the series, we shall move the discussion forward by hammering on “The Likelihood of Confusion and its Role in Trademark Enforcement.”
Until then, stay tuned for more legal guidance, training, and education. In the interim, if there are any questions or comments, please let us know at the Contact Us page!
Always rising above the bar,
Isaac T.,
Legal Writer, Author, & Publisher.
