I was watching CNN and what I thought was a commercial for Fahrenheit 9/11 when suddenly I see Mayor Koch calling Michael Moore a liar. It was a commercial for Fahrenhype 9/11! Made me look!
By the way, if you type ‘Fahrenhype 9/11′ into Google, Google asks whether you meant ‘Fahrenheit 9/11.’
Clearly the name FAHRENHYPE 9/11 was chosen to parody FAHRENHEIT 9/11. But parody is not a absolute defense if there is confusion.
There’re two types of potential confusion here. The first is actual confusion – as in someone buys or rents the wrong DVD. Who knows whether that is occurring. The second type (and, if I had to guess, the more probable in this instance), is initial interest confusion (long time Blog readers know of my obsession with this doctrine). I was only exposed to Koch’s (and, maybe, the makers of Fahrenhype’s) views of Michael Moore because I was paying attention to what I thought was a commercial for FAHRENHEIT 9/11. I would not have paid any attention at all if the commercial had begun “Now, a DVD from someone who works for Fox News” (as does the individual who is credited with Fahrenhype).
And in this unusual situation, the transmission of the negative mesage about FAHRENHEIT, may be as important as sales of the FAHRENHYPE product.
If we were talking meta-tags, and this was the Seventh Circuit, then the mere ‘made you look’ effect alone would be actionable.