Initial Interest Confusion in Trademarks

"Initial interest confusion" is a legal concept that describes when consumers are temporarily misled into believing that two businesses or products are somehow affiliated, even if briefly and resolved before a purchase is made. In the context of trademark law, this confusion is particularly problematic when it is the result of one company embedding a competitor's trademark in the hidden data of its own website. This hidden data, also called meta tags, although not visible to human users, is used by web search engines to index website content.

A company that intentionally embeds a competitor's trademark in its website meta tags can lead to initial interest confusion because users may be misdirected to its website when the user is using the competitor's trademark as a search term. Although users may later realize the two companies are not affiliated in any way, the damage has been done: Company A has benefited from the initial diversion of Company B's potential customers. This diversion to Company A's website can also signal search engines that Company A's website is relevant to Company B's trademark as a search term, and further boost Company A's website SEO (Search Engine Optimization) ranking.

In trademark infringement cases, courts have examined whether using another's trademark in meta tags is a form of unfair competition. Even though users may quickly recognize that the websites or products are not related, the mere act of getting them to visit the infringing site initially can constitute trademark infringement under the theory of initial interest confusion. For this analysis, courts consider the DuPont factors such as the visual and aural similarities of the trademarks, the nature of the goods or services, and channels of trade when determining whether infringement has occurred.

In Brookfield Communications, Inc. v. West Coast Entertainment Corp., the court held that meta tag usage could indeed lead to initial interest confusion, even if the confusion may be dispelled by the time the consumer makes a purchase: "When a firm uses a competitor's trademark in the domain name of its web site, users are likely to be confused as to its source or sponsorship. Similarly, using a competitor's trademark in the metatags of such web site is likely to cause what we have described as initial interest confusion. These forms of confusion are exactly what the trademark laws are designed to prevent."

Please contact Wei Wei Jeang wjeang[at]fultonjeang.com if you have questions about trademark law.