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Eighth Circuit Permits Recovery for 'Initial-Interest Confusion' In Trademark Cases
The Lanham Act protects trademark holders against consumer confusion by providing a cause of action against the use of similar marks on similar products if that use creates a likelihood of confusion. The likelihood of confusion analysis is often focused on confusion at the time of purchase, but the U.S. Court of Appeals for the Second, Third, Fifth, Sixth, Seventh, Ninth, Tenth and Federal Circuits permit mark holders to allege infringement based on presale, initial-interest confusion (whereas the First, Fourth, and Eleventh Circuits do not).
Earlier this year, the U.S. Court of Appeals for the Eighth Circuit joined the majority of circuits in permitting recovery for initial-interest confusion in certain circumstances. Select Comfort Corp. v. Baxter, 996 F.3d 925 (8th Cir. 2021), cert. filed, No. 21-212. The Supreme Court is currently considering whether to review that decision and potentially resolve the circuit split on this issue.
The Initial-Interest Confusion Doctrine
The Lanham Act provides a cause of action against "[a]ny person who…uses in commerce any word, term, name, symbol, or device…false or misleading description of fact, or false or misleading representation of fact, which is likely to cause confusion…as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person. 15 U.S.C. §1125(a).
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Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
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