This month, the US Court of Appeals for the Eighth Circuit expressly endorsed the trademark infringement theory of initial-interest confusion, which is "confusion that creates initial customer interest, even though no actual sale is finally completed as a result of the confusion." Select Comfort Corp. v. Baxter, No. 19-1011 (8th Cir. May 11, 2021). In adopting the theory, the Eighth Circuit joined the majority of circuits to have addressed the issue.

The appeal arose from a lawsuit in which the maker of the SLEEP NUMBER bed alleged that a competing manufacturer infringed the SLEEP NUMBER mark and other registered marks by using confusingly similar phrases in various online advertising formats (e.g., URLs). Relying upon Sensient Techs. Corp. v. SensoryEffects  Flavor Co., 613 F.3d 754 (8th Cir. 2010), in which the Eighth Circuit previously declined to endorse the theory of initial-interest confusion, the district court instructed the jury that infringement liability depended on a showing of a likelihood of confusion at the time of purchase.

The Court of Appeals reversed, distinguishing Sensient and holding that a plaintiff should not be barred from proving pre-sale, initial-interest confusion when a jury question exists as to the issue of consumer sophistication. The court noted that the question of infringement is meant to recognize the varied nature of commercial transactions and reasoned that "it would be odd to presume that all commercial interactions are alike or that, in all settings, trademarks are worthy of protection only in the few moments before the consummation of a transaction."

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