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.