Overview
This lecture covers various types of trademark confusion beyond point-of-sale, including sponsorship, initial interest, post-sale, positive, and reverse confusion, as well as contributory infringement by intermediaries.
Types of Trademark Confusion
- Trademark confusion now includes more than just confusion at the point of sale.
- Initial interest confusion occurs when consumers are drawn in by a similar mark but realize the difference before purchase.
- Post-sale confusion arises when others mistakenly believe a product is genuine after the sale.
- Positive confusion is when someone uses a fake product to make others believe they own the real one.
- Reverse confusion happens when a larger company overwhelms a smaller company’s prior mark, causing confusion about the origin.
- Confusion related to sponsorship or endorsement occurs when consumers wrongly believe a brand has approved or is connected to a product.
Legal Framework and Enforcement
- The Lanham Act was expanded to encompass confusion away from the point of sale since 1962.
- Trademark infringement now covers similar marks used in advertising, distribution, or sale likely to cause confusion, mistake, or deception.
- Famous trademarks receive broader protection, including on unrelated promotional goods (trademark merchandising).
- Boston Hockey case established infringement for unauthorized use of trademarks on promotional goods.
Contributory Infringement
- Contributory infringement occurs when an intermediary facilitates the sale of infringing goods knowingly or with willful blindness.
- Online marketplaces and flea markets must control or monitor sellers to avoid liability for infringement.
- Tiffany v. eBay case clarified limits of platform liability for contributory infringement.
- Platforms use user agreements and technology to prevent sale of counterfeit goods, but liability risk remains if control is inadequate.
Key Terms & Definitions
- Initial Interest Confusion — When a consumer is momentarily misled by a mark before realizing the true source.
- Post-Sale Confusion — Confusion by others after the product is purchased regarding its authenticity.
- Positive Confusion — When a fake product is used to deceive others into thinking it's real.
- Reverse Confusion — When a bigger company uses a mark, causing the public to believe the original, smaller user's goods are the copy.
- Contributory Infringement — Liability for parties who facilitate trademark infringement by others.
Action Items / Next Steps
- Review assigned readings and slides for exam-relevant material.
- Prepare questions on confusion types and contributory infringement for class discussion.
- Watch the next video on trademark dilution.