Widener University Commonwealth Law School
MONTH-IN-BRIEF (Nov 2021)
[lwptoc]
Supreme Court Refuses to Review 8th Circuit “Initial Interest Confusion” Decision
By John E Ottaviani, Partridge Snow & Hahn LLP
The U.S. Supreme Court has declined to hear a petition for certiorari regarding online advertising practices in the latest battle in a long-running dispute between two mattress companies. The denial lets stand a decision from the U.S. Court of Appeals for Eighth Circuit that held that the plaintiff could rely on a showing of confusion at the time of advertising, not at the time of purchase, in its trademark infringement claim. Select Comfort Corporation v. Baxter, 996 F.3d 925 (8th Cir. 2021); Dires LLC et al. v. Select Comfort Corporation et al., cert. denied, ___ U.S. ___, No. 21-212 (Nov. 22, 2021).
The “initial interest “doctrine has been a source of contention in trademark law since businesses have started using the Internet for advertising purposes. The theory is that there could be trademark infringement if consumers are confused at the initial point of advertising into choosing the website of one company over another company, even though no actual sale is completed as a result of the confusion. This typically occurs when one company uses the trademarks of a competitor in its online advertisements or website, or in “metadata” that causes the competitor’s advertisements or website to appear higher in the search results than the trademark owner’s advertisements or websites.