India: Hijacking Of Identity: Initial Interest Confusion

Last Updated: 25 June 2015
Article by Himanshu Sharma

Most Read Contributor in India, September 2016


Whenever a person wants to buy something, he starts with searching for the best option available in the market. There are various mediums of doing so in the contemporary time as compared from the time when the mediums were limited. Now a person has an option of window shopping, searching for the same through magazines, relying on the advertisement and promotion of the company related to the product and then he also have an option of searching on the internet and website of the particular brand. The choice of product depends upon various ingredients which are involved in a process of buying like the qualities of a product, budget of the person etc but one of the ingredient which is not involved earlier but with the emergence of time it has become one of the most important factor in the choice of the product i.e. initial interest involved.

A product sale apart from the other factors is also dependent upon the initial interest of the consumer involved in a product. Although a product has its sales because of its quality then also a share of the sale is because of reason of the initial interest of the consumer in the product. The initial interest confusion should not be baffled with the confusion related to the identity of the two trademarks. It is related to the confusion related to the time of searching for a product. The initial period when a person is looking for a product is very crucial and it is during this period that the initial interest confusion has its origin. The way by which a seller is able to draw attention of a consumer towards its product and how genuine his efforts are in drawing the consumer towards its product would help in deciding whether the same is infringement or not.


The initial interest theory has its origin from the judicial interpretation provided by the various courts around the world. The interest developed in a product because of its own qualities and the goodwill of the product itself is not a wrong in the legal sense but when the initial interest developed is because of unlawful use of the trademark, goodwill and name of a product then it would be treated as an infringement as held in the various cases around the world.

The initial interest confusion is related to the confusion before the time of purchase, it should not be mystified with the confusion at the time of purchase. It involve the time when a person has decided that he needs something and has not reached the place from where he has to buy that product hence the initial interest confusion does not come into picture when the person has reached the place from where he needs to buy that product and has got confused because he saw two marks similar to each other.


The use of others trademark as a metatags in drawing the consumers towards its own website is a common case these days.

In case of Consim Info Pvt. Ltd Vs. Google India Pvt. Ltd. and Ors.1 while discussing various cases the court observed in regards to the initial interest theory that "in the early stages, courts perceived the unauthorised use in metatags, by a person, of someone else's trademark, as creating confusion in the minds of the consumers. This doctrine, identified as a doctrine of initial interest confusion posits that trademark infringement results when a consumer has been confused prior to purchase. But in normal circumstances, the likelihood of confusion would occur at the time of purchase. All over the world, the Courts have struggled hard, as pointed out above, to grapple with this problem of "initial interest confusion" in the internet context, where internet users seeking a trademark owner's website are diverted (i) either by identical or confusingly similar domain names to websites in competition with the trademark owner or (i) by a competitor's unauthorised use of another's mark as the keyword to generate banner or pop-up advertisements for its products and services."

In US, the use of another's trademark in meta-tags to capture initial consumer attention was also regarded as a potential infringement of a trademark.

In Brookfield Communications, Inc. v. West Coast Entertainment Corp.2 the defendant West Coast Entertainment used the plaintiff's "moviebuff" mark in the metatags of its website. The Court analogised it to the use of a Bill Board bearing the plaintiff's mark to attract consumers interested in the plaintiff's products or services. Although the consumers would ultimately realise that the defendant was not the provider they initially sought, they might decide instead to patronise the defendant's website. The Court held that using another's trademark in one's metatags is much like posting a sign with another's trademark in front of one's store. Elaborating this illustration, the 9th Circuit Court said, "Using another's trademark in one's meta-tags is much like posting a sign with another's trademark in front of one's store...... Customers are not confused in the narrow sense: they are fully aware that they are purchasing from Blockbuster and they have no reason to believe that Blockbuster is related to, or in any way sponsored by West Coast. Nevertheless, the fact that there is only initial consumer confusion does not alter the fact that Blockbuster would be misappropriating West Coast's acquired goodwill".

The Bill Board analogy used in Brookfield was again considered in Playboy Enterprises, Inc. v. Netscape Communications Corporation3. The District Court rejected the plaintiff's request for a preliminary injunction and the Court of Appeals, Ninth Circuit confirmed the same. Subsequently, the District Court granted summary judgment (akin to rejection of plaint) in favour of the defendants.

While reversing the order granting summary judgment in favour of the defendants and remanding the matter for further proceedings, the Court of Appeals, Ninth Circuit applied an eight-factor test, originally set forth in AMF Inc. v. Sleekcraft Boats4 viz., (1) strength of the mark (2) proximity of the goods (3) similarity of the marks (4) evidence of actual confusion (5) marketing channels used (6) type of goods and the degree of care likely to be exercised by the purchaser (7) defendant's intent in selecting the mark and (8) likelihood of expansion of the product lines.

Thereafter, the Court accepted the argument of "initial interest confusion" advanced by the plaintiff, on the ground that the choice of keywords, presented to the advertisers by the search engine and the use of clickthrough rates as a way to gauge the success of advertisements, showed intent to confuse. Since intent to confuse constituted probative evidence of likelihood of confusion, the Court held that the summary judgment issued in favour of the defendants by the District Court was wrong.

After the 'Bill Board' analogy in Brookfield and 'highway sign post'' analogy in Playboy, the Courts extended the "initial interest confusion doctrine" to correspond to a broader reading of Brookfield, under which real confusion is not required, but a probability of confusion was enough.

In People for the Ethical Treatment of Animals v. Doughney,5 the Court found initial interest confusion based on the use of the domain name to link to a site entitled "People Eating Tasty Animals", a parody of the "People for the Ethical Treatment of Animals" website that visitors were presumably trying to reach. Once visitors reached the page, there is no way they could have been confused given the very different title and the obviously parodic message of the page. Nonetheless, the Court found the instant of confusion created before visitors saw the content of the website to be actionable.

In case of Warner Bros. Entertainment Inc. vs Harinder Kohli And Ors6

It was observed by the Hon'ble High Court of Delhi on the basis of the explanation provided in McCarthy on Trademarks and Unfair Competition, Fourth Edition, Volume 3, pages 23-19:

"Infringement can be based upon confusion that creates initial customer interest, even though no actual sale is finally completed as a result of the confusion ....................... ....................................? ?The analogy to trademark initial interest confusion is a job-seeker who misrepresents educational background on a resume, obtains an interview and at the interview explains that the inflated resume claim is a mistake or a typing mistake. The misrepresentation has enabled the job-seeker to obtain a coveted interview, a clear advantage over others with the same background who honestly stated their educational achievements on their resumes. In such a situation, it is not possible to say that the misrepresentation caused no competitive damage. Initial interest confusion can be viewed as a variation on the practice of bait and switch."

Section 29(1) of the Trade Marks Act, 1999 requires the similarity of the trademark to result in likelihood of confusion for claiming infringement. In case of likely hood of confusion, the confusion is related to the time when a person is buying a product and the infringer has taken the advantage of the reputation of the well established trademark whereas in case of initial interest confusion it is related to the confusion before the time of purchase of product and the person has realised before purchase that he is not buying the same product what he had thought about but then also he has developed a liking for the product due to the initial interest developed due to one reason or other. The use of others trademark as a meta tag is the most common way of doing the same and the same has been taken as an infringement by the various courts in various judgments mentioned above.


The initial interest confusion phenomenon is a recent development due to the development of modern mode of sales and purchase specially internet. The way of purchasing the product is changed with the passage of time and so is the way of selling a product. The latest development in the marketing has also led to the vigorous competition between the rival brands. The line between the fair use of others trademark or trade name and unauthorized use of the same is very thin. The development of provision of the trademark law has led to the establishment of the new theories related to the modern use of the trademark. Initial interest confusion doctrine is the development of the contemporary interpretation of the trademark law. Initial interest confusion has its origin from the use of other's rights for own benefits. It is related to the time period wherein the consumer has decided to buy a particular product. While he is searching for his choice of product he came across other products similar to the one he was searching for and instead of buying the product of his choice at the first instance he ends up buying another one due to the reason of his interest developed for the other product due to the method adopted by the others to promote his product. The use of the others trademark for the promotion of one's own product would decide whether the method used is infringement or not. Initial interest confusion is been treated as infringement in various cases around the world.



2. 174 F.3d 1036-9th Cir. 1999,

3. 354 F.3d 1020

4. 599 F.2d 341 (9th Cir. 1979)

5. 263 F.3d 359 (4th Cir. 2001)

6. IA No.9600/2008 in CS(OS) No.1607/2008

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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