15
Apr/03

Sixth Circuit Doesn't Decide Initial Interest Confusion Case


Initial Interest Confusion (IIC) is, imho, one of the key doctrines in the treatment of trademarks on the Internet.    If a user is diverted to a website through the unauthorized use of a trademark (in a domain name, meta-tag or some other method), but any confusion is dispelled prior to purchase, is that trademark infringment (or some other form of unfair competition)?  The Ninth and Seventh Circuits believe IIC exists in an Internet context.  Other courts dismiss it, believing that users are inured to winding up at the wrong place (and getting over it).

It is therefore frustrating when a partial record suggests that IIC could have been argued and evaluated.  Defendant had been selling plaintiff’s product on a webpage which included plaintiff’s mark in the pathname (the stuff after the top level domain in a URL).  When defendant switched products, it didn’t bother to change the webpage URL, so plaintiff’s mark remained (this is the page here by the way, which has been changed). Defendant’s page continued to appear in searches for plaintiff’s mark.  Plaintiff sued for trademark infringment.

The Sixth Circuit held that unauthorized use of a trademark in a pathname of a URL is not actionable, finding, quite sensibly, that use of (an unpromoted) URL is not trademark use.  It is possible to use a pathname as a trademark (some movie companies have, putting pathnames on posters), it’s just not practical, given that they tend to be long and ungainly. In any event, this defendant didnt use the URL as a trademark, it just used it as a URL.

This would have been an interesting case if it were shown that the existence of plaintiff’s trademark in defendant’s pathname diverted search engine traffic.  Then we might have had an initial interest confusion discussion.  However, as the very last footnote indicates:

IPC [plaintiff] also complains that a2z’s [Defendant’s] portable-computer-stand web page is listed as one of the hits when one does an Internet search for the term “laptraveler.” IPC’s own expert, however, testified that “the path name does not bias a search engine.” In addition, IPC has offered no proof that defendants did anything nefarious to cause search engines to hit a2z’s web page when searching for “laptraveler.” For instance, IPC does not present any evidence that defendants referenced “laptraveler” in the metatags of a2z’s portable-computer-stand web page. See Promatek Industries, Ltd. v. Equitrac Corp., 300 F.3d 808, 812-13 (7th Cir. 2002) (holding that the defendant’s reference to the plaintiff’s trademark in the metatags of the defendant’s web page was a violation of trademark law). The record does not contain any evidence that explains why a2z’s web page is hit when performing an Internet search for “laptraveler.”

And with that mystery unresolved, the case was dismissed.

Interactive Products v. a2z Mobile Office Solutions, No. 01-3590 (6th Cir. April 10, 2003).

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