Initial interest confusion

Initial Interest Confusion is a legal doctrine under trademark law that permits a finding of infringement when there is temporary confusion that is dispelled before the purchase is made. Generally, trademark infringement is based on the likelihood of confusion for a consumer in the marketplace. This likelihood is typically determined using a multi-factor test that includes factors like the strength of the mark and evidence of any actual confusion. However, trademark infringement that relies on Initial Interest Confusion does not require a likelihood of confusion at the time of sale; the mark must only capture the consumer’s initial attention.

A famous hypothetical example of Initial Interest Confusion, first discussed in Brookfield v West Coast Entertainment, involves two video stores. West Coast Video’s competitor, Blockbuster Video, puts a billboard on a stretch of highway advertising a West Coast Video at an upcoming exit. In reality, there is no West Coast Video at this exit; it is a Blockbuster Video instead. The consumer, expecting to find a West Coast Video store, sees the Blockbuster Video and decides to patronize the suitable replacement. Even though the confusion has been dispelled, Blockbuster is still misappropriating the acquired goodwill of West Coast Video’s trademark.

The Initial Interest Confusion doctrine has been applied by U.S. courts as early as 1975. However, with the appearance of the World Wide Web, Initial Interest Confusion claims have increased from 10 cases relying on the doctrine before 1990 to more than 100 between 1990 and 2005.

The first judgment discussing Initial Interest Confusion can be found in Grotrian, Helfferich, Schults., Th. Steinweg Nachf. v Steinway & Sons, although the exact expression is never used. At the time of the dispute, Grotrian, Helfferich, Schultz., Th. Steinweg Nachf. (also referred to as "Grotrian") was importing into the United States pianos labeled "Grotrian-Steinweg" and advertised under the mark "Steinweg". Consequently, Steinway & Sons filled a trademark infringement suite against Grotrian. The parties are historically linked – the founder of Steinway & Sons, Henry E. Steinway was initially making pianos labeled Steinweg in Germany, and his son partnered with Grotrian. When he immigrated to New York, the business was sold to the three employees Grotrian, Helfferich and Schulz, with the permission to use the "Steinweg" mark.

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