Plaintiff asserts rights in the SLEEP NUMBER and NUMBER BED marks for air mattresses. Defendants compete. Defendants allegedly used” plaintiff’s actual trademarks as paid search terms and as identical phrases in their own web-based advertising in text pages, combined text and graphical pages, as terms embedded in linked internet address urls, and in other fashions.” Page 6.
The district court instructed the jury that a likelihood of confusion must exist at the time of purchase, and, based on that instruction, the jury rejected the trademark infringement claim.
On appeal, the Court relied on the 1962 amendment to the Lanham Act, which eliminated reference to “purchasers” when describing actionable confusion. Pub. L. No. 87-772, 76 Stat. 769, 773 (1962), quoted at page 12, for the proposition that Congress did not intend that actionable infringement be limited solely to a likelihood of confusion at the time of purchase.
Here, because a jury question existed as to the issue of consumer sophistication, a plaintiff should not be barred from proving presale, initial-interest confusion.