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Trademark Initial Interest Confusion: It’s The Real Thing

Posted in Advertising, Branding, Food, Infringement, Keyword Ads, Marketing, Trademarks

A little while back I wrote about the Likelihood of Confusion test in Trademark Law and how it protects trademark owners against much more than simply likelihood of confusion as to source.  

I also wrote about how Wolf Appliance was able to convince a federal judge in Wisconsin to grant a preliminary injunction barring Viking Range from selling a red knob kit for competing high end residential cooking ranges, based on a very hypothetical fact pattern and an Initial Interest Confusion theory.

As the International Trademark Association (INTA) has said: "Under the doctrine of initial interest confusion, liability for trademark infringement may be found where the infringing mark causes initial customer interest in a product or service, even if that initial confusion is corrected by the time of purchase."

Whatever the criticisms might be to the doctrine of Initial Interest Confusion, including those detailed by our friends Ron Coleman, Marty Schwimmer, and Eric Goldman, in the context of keyword advertising, the road-side restaurant sign shown above definitely is "the real thing" for purposes of trademark initial interest confusion, in more ways than one:

It does depict the Coca-Cola brand, in all its glory, after all, so It’s The Real Thing, by definition.

And, unlike the very hypothetical scenario relied upon in the Wolf Appliance case, the above drive-in restaurant signage is real world and in current use, designed to attract attention, and has been for years, in fact, well after the business responsible for the sign dropped Coca-Cola for Pepsi. That’s right, "no Coke, Pepsi." To twist Sean Penn’s words in I Am Sam, Wagner’s change was a "very bad choice," at least in my humble opinion of taste.

Last, it certainly is a good example of the Initial Interest Confusion doctrine at work.

Minneapolis drivers on Highway 81 pull off the road for a great cheeseburger and a refreshing Coca-Cola, or in my case, Diet Coke. Only to find that there is no Diet Coke, or any Coca-Cola products for that matter, only Pepsi products. Drivers likely aren’t confused at the point of purchase, however, since the menu and interior soda fountain signage refer to Pepsi not Coke. Nevertheless, the exterior sign no doubt has steered more than a few thirsty types off the road over the years to end up purchasing Pepsi products, not Coca-Cola products.

Not me, however, I’m not even initially confused any longer, just annoyed with the change, and deciding with each visit, well in advance, to enjoy a chocolate malt instead of a soft drink, since I can’t have the real thing any longer at Wagner’s Drive-In II.

  • Paul

    And what is the purpose of a trademark – to prevent customers from purchasing products from Company A believing them to be those of Company B. Were you confused? No. You could have driven away.
    If I have a grocery with a big sign out front advertising Coke and you enter to find out there is no more, have you experienced IIC? Yes – you thought you could purchase a Coke. If you instead buy the “other cola” is Coke injured?
    And who most likely put the sign there? Most likely Coke paid for the sign. When Wagner’s switched to the “other cola”, Coke could have requested the sign be removed.
    It would help to see the entire sign in context of its surroundings. Alone, at the end of the day, the link between Wagner’s and Coke is implicit at best. It does not state you can purchase a Coke at Wagner’s. The 2 appear on the same marque but note that the signs are individually constructed.
    I am strongly in Ron’s court here. It presumes consumers are either stupid or simply slaves to branding (perhaps evidence of stupidity). Given that capitalism is based upon the premise that consumers make logical choices, I find no room for IIC in our society other than to extend the interests of trademarks.

  • http://www.duetsblog.com/steve-baird.html Steve Baird

    Paul, thanks for sharing your thoughts and perspective. I have few additional thoughts.
    We appear to disagree on the current purpose of trademark law, as the first link in my post above details, the law actually protects against more than source confusion, but I appreciate not all are in agreement with that purpose which admittedly has evolved over time.
    Actually, I don’t have a problem with your grocery store hypothetical, and I think it is different from the Wagner’s example, because grocery stores sell all different kinds of products under a variety of brands, and there is no guarantee that the shelves will always be fully stocked for each brand. Having said that, if the grocery store displayed exterior Coca-Cola signage and never sold any Coca-Cola products (that is the Wagner’s example, by the way), it seems to me that is a classic bait and switch, from a pure legal perspective.
    For that reason, it struck me as a strong example of a reasonable application for the often maligned initial interest confusion doctrine. I don’t think anyone should feel stupid for thinking they could buy a Coke at Wagner’s, given the sign, and the common practice of carrying one brand or the other. If the initial interest confusion doctrine helps avoid a scenario where there is no accountability between the business signs used to draw people in and what is actually offered, I’m all for it. I think that level of trademark protection is consistent with capitalism and supports a less-confusing and chaotic society.
    I’ll see if I can update the post with another photo showing “the entire sign in the context of its surroundings.” In the meantime, I can tell you that what you see is the entire sign on a pole positioned right next to Wagner’s Drive-In, and there is nothing else nearby where anyone might hope to quench their thirst for Coca-Cola other than at the Wagner’s Drive-In restaurant.
    Last, I also have wondered why the sign has lasted so long after Wagner’s switched soft drink providers. Whoever paid for it, however, doesn’t control whether it must be removed, in my opinion. To that point, I think Coke could do more than “request” that the sign be removed. You’d think that the Coke rep who lost the Wagner’s account would have had them factor in the cost of a new sign to whatever savings they thought they’d realize in switching to another brand. :)
    Thanks for dropping by.
    Steve