The preliminary interest confusion doctrine has at all times been a misguided doctrine that’s too straightforward for plaintiffs to weaponize. Fortunately, the doctrine has been dying for over a decade. Few opinions point out it these days, and even fewer cite it in help of a plaintiff. Bucking that development, the Eighth Circuit sadly embraced the doctrine for the primary time….in 2021. The opinion will increase your blood strain.
This case entails litigation amongst mattress distributors, a sordid area of interest of enterprise litigation. It looks as if each mattress litigant has unclean hands, and the opinions are sometimes lengthy and primarily unbloggable. The questions introduced to the appeals courtroom provide you with a style: after a jury trial, “Plaintiffs raise nine issues. Defendants contest all nine issues, raise one additional issue in a cross-appeal, and raise a second issue in a ‘conditional cross-appeal.’” I by no means wish to purchase a mattress once more, as a result of I do know an excessive amount of of my cash shall be used to fund litigation like this.
The “District Court held as a matter of law that a claim alleging initial-interest confusion could not proceed and Plaintiffs would have to show a likelihood of confusion at the time of purchase.” The appeals courtroom reverses this conclusion.
Citing McCarthy, the courtroom adopts the Ninth Circuit’s old-school Brookfield definition of preliminary interest confusion as “confusion that creates initial customer interest, even though no actual sale is finally completed as a result of the confusion.’” This is the worst attainable definition of preliminary interest confusion, as a result of–by definition–advertisers at all times search to seize “initial consumer interest.” I explained this point over 90 pages in 2005. Because it’s an unworkable definition, the Ninth Circuit has walked again or abrogated the Brookfield commonplace many occasions–most definitively in its 2011 Network Automation case, after which the preliminary interest confusion dried up within the Ninth Circuit. Bypassing all the pieces we’ve discovered within the final twenty years (the opinion cites solely instances which are 20+ years previous), the courtroom tries to justify the doctrine:
The idea protects in opposition to the specter of a competitor “receiving a ‘free ride on the goodwill’ of [an] established mark.” This free journey might consequence within the shopper falsely inferring an affiliation between the junior and senior customers, present the junior consumer with a possibility it in any other case wouldn’t have achieved, or deprive the senior consumer of an precise alternative. At least one circuit has “equated initial interest confusion to a ‘bait and switch scheme’”
Does anybody truly consider this shit in 2021? Over the previous 20+ years, these judicial assumptions haven’t been backed by any credible empirical help. This exposes the Achilles heel of frequent legislation jurisprudence–it’s apparently completely acceptable to quote decades-old instances that have been based mostly on judicial instinct for empirically testable propositions that aren’t truly empirically supportable. This can also be why the preliminary interest confusion doctrine refuses to die; judges can reach again into previous case legislation, and ignore many years of savvier considering, to revitalize it.
Worse, the opinion conflates preliminary interest confusion, bait-and-switch, and “pre-sale” confusion as being the identical factor. They will not be. Pre-sale confusion is the genus; preliminary interest confusion is a species within the genus; and bait-and-switch is greatest treated as a distinct species within the genus (although it may be the one applicable archetype of the preliminary interest confusion species). The opinion hashes trademark legislation by equating these doctrines.
The courtroom flatly states: “a plaintiff should not be barred from proving presale, initial-interest confusion.” I feel trademark specialists would typically agree that plaintiffs ought to be allowed to assert pre-sale confusion. (Whether they’ve sufficient information to outlive a movement to dismiss or abstract judgment is dependent upon them). It’s the courtroom’s invocation of preliminary interest confusion that’s pointless, unhelpful, and analytically unsupportable.
Trying to stroll again from its unqualified embrace of the preliminary interest confusion doctrine, the opinion says the doctrine doesn’t apply when the applicable customers are “careful professional purchasers.” However, the courtroom additionally says “our general adoption of the theory of initial-interest confusion forecloses summary judgment where a question of fact exists as to the level of consumer sophistication.” If there are questions of incontrovertible fact that stay on abstract judgment, that is smart. However, in response to the courtroom, reality questions on shopper sophistication–sufficient to dam abstract judgment–at all times exist in each Internet case as a result of there’s a break up of judicial authority about “the level of sophistication web-based shoppers bring to the table and how this potentially separate question should influence the general assessment of sophistication.” Oh actually? The newest case cited by the decide for this break up of authority is the Network Automation case from a decade in the past. I assume on-line shopper sophistication hasn’t modified up to now decade?
This lawsuit began in 2012–the district courtroom docket has over 700 entries–and more than likely the events will spend extra years and cash on one other pricey trial. 🤑🤑🤑 Just what number of children have gotten a personal faculty formal training from the litigation prices of this case??? Consider that whenever you purchase your subsequent mattress.
This opinion is an effective candidate for a rehearing en banc. The opinion creates avoidable doctrinal bother, and different judges on the Eighth Circuit ought to demand a tighter opinion with more energizing citations (if not a totally completely different consequence).
Case quotation: Select Comfort Corp. v. Baxter, 2021 WL 1883314 (eighth Cir. May 11, 2021)