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Comments On Civil Jury Instructions On Initial Interest ConfusionComments On Civil Jury Instructions On Initial Interest ConfusionSee also Civil Jury Instructions 18.15 on Likelihood of Confusion Factors and Sleekcraft Test
Meaning of “Likelihood” of Confusion: Likelihood of confusion means that confusion “must be probable, not simply a possibility.” Murray v. Cable National Broadcasting Co., 86 F.3d 858, 861(9th Cir. 1996); (citing Rodeo Collection Ltd., v. West Seventh, 812 F.2d 1215, 1217 (9th Cir. 1987)). See also Newton v. Thomason, 22 F.3d 1455, 1461-62 (9th Cir. 1994) (“mere possibility” that consumers would be misled is insufficient under § 1125(a)).
Alternatives to Source Confusion: The “confusion” referred to in the “likelihood of confusion” inquiry normally concerns “the source” of the parties’ goods. However, the Ninth Circuit has also found a likelihood of confusion when consumers viewing the trademarks are likely to purchase the goods under a mistaken belief that the goods are, or associated with the goods of another. See Murray v. Cable National Broadcasting Co., 86 F.3d 858, 861 (9th Cir. 1996). For a case involving celebrity persona, see Newton v. Thomason, 22 F.3d 1455, 1461-62 (9th Cir. 1994).
Similarity of Marks: Regarding the similarity of plaintiff's and defendant's marks, see GoTO?Create.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1205-1206 (9th Cir. 2000) (noting that similarity of marks is a critical and important factor in the Sleekcraft analysis). See also Filipino Yellow Pages, Inc. v. Asian Journal Publications, 198 F.3d 1143, 1147-50 (9th Cir. 1999) (appearance in marketplace is standard for evaluating similarity of mark); Dreamwerks Prod. Group v. SKG Studio, 142 F.3d 1127, 1131 (9th Cir. 1998) (analyzing similarities of appearance, sound, meaning); Office Airline Guide v. Goss, 6 F.3d 1385, 1392 (9th Cir. 1993) (similarities are weighed more heavily than differences).
Actual Confusion: Regarding actual confusion, see Brookfield Communications v. West Coast Entertainment Corp., 174 F.3d 1036, 1054-55 (9th Cir. 1999) (in Internet litigation, similarity of marks alone does not necessarily lead to consumer confusion). While evidence that use of two marks has already caused confusion is persuasive proof of likelihood of confusion, the converse is not true. See id. See also Kendall-Jackson Winery v. E. & J. Gallo Winery, 150 F.3d 1042, 1052 (9th Cir. 1998) (holding that trial court instruction on actual confusion factor was not in error); E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1292 (9th Cir. 1992) (permissible inferences from presence or absence of actual confusion).
Initial Interest Confusion: Likelihood of confusion occurs not only at the time of sale or transaction. Recently, the Ninth Circuit explored the likelihood of “initial interest confusion.” This doctrine “permits a finding of a likelihood of confusion although the consumer quickly becomes aware of the source’s actual identity and no purchase is made as a result of the confusion.” Interstellar Starship Services, Ltd. V. Epix, Inc., 184 F.3d 1107, 1110 (9th Cir. 1999). Initial interest confusion appears to involve the infringer misleading consumers into an “initial interest” in the infringer’s product or service because of the mark employed by the infringer, even if the initial interest is short-lived and no purchase occurs. The infringer’s actions resemble “posting a sign with another’s trademark in front of [the infringer’s] store.” Brookfield Communications v. West Coast Entertainment Corp., 174 F.3d 1036, 1064 (9th Cir. 1999).
Initial Interest Confusion & Sleekcraft Factors: The Ninth Circuit has suggested that initial interest confusion may alter the assessment of various Sleekcraft factors. Modification of this Instruction 18.15 may be necessary when evidence is presented of initial interest confusion. See, e.g., Interstellar Starship Services, Ltd. V. Epix, Inc., 184 F.3d 1107, 1110-11 (9th Cir. 1999); Brookfield Communications v. West Coast Entertainment Corp., 174 F.3d 1036, 1062-65 (9th Cir. 1999); Dr. Seuss Enterprises, L.P. v. Penguin Books, 109 F.3d 1394, 1405 (9th Cir. 1997).
Celebrity Endorsement Confusion Cases: In cases involving confusion over celebrity endorsement under 15 U.S.C. § 1125(a)(1)(A), the Ninth Circuit has indicated certain equivalencies that will require adjustments to this instruction. See, e.g., Newton v. Thomason, 22 F.3d 1455, 1462 (9th Cir. 1994) (applying Sleekcraft test to celebrity); White v. Samsung Electronics America, Inc., 971 F.2d 1395, 1399-1400 (9th Cir. 1992) (applying Sleekcraft test to a celebrity).
Internet Service Cases: In cases involving Internet services, the presence or absence of certain factors may weigh differently than in the non-Internet context. The description of those factors as set out in this instruction may require adjustment for the Internet context. See GoTO?Create.com, Inc., v. Walt Disney Co., 202 F.3d 1199 (9th Cir. 2000). See also Brookfield Communications v. West Coast Entertainment Corp., 174 F.3d 1036, 1054-55 (9th Cir. 1999) (highlighting identity of marks, relatedness of goods and marketing channels as the “most important” factors in the Internet context).
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