The 10th U.S. Circuit Court of Appeals has joined other circuits in recognizing initial interest confusion as actionable in trademark infringement cases. Australian Gold Inc. v. Hatfield, 436 F.3d 1228 (10th Cir. 2006). The decision also is one of several recent circuit court decisions to consider the doctrine in connection with the Internet. Some courts have specifically limited the doctrine when applied to the Internet, while others have not expressly limited the doctrine. Australian Gold and other recent decisions underscore that, just as in the brick and mortar world, determining the existence of initial interest confusion on the Internet is a highly fact-specific inquiry.
The 10th Circuit explained in Australian Gold that initial interest confusion results when a consumer seeks a particular trademark holder’s product and instead is lured to the product of a competitor by the competitor’s use of the same or a similar mark. The consumer may quickly realize that the product is not the one he originally sought but nonetheless may decide to consider the competitor’s product. The 10th Circuit concluded there can be damage to the trademark owner even when the consumer does not purchase the competitor’s product. For example, the competitor may have more credibility with the consumer because of the initial interest that was generated by the trademark owner’s reputation.
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