Initial interest confusion

Abstract

Ilanah Simon Fhima is Senior Lecturer and Co-director of the Institute of Brand and Innovation Law, Faculty of Laws, University College London.Traditionally, trade mark law in the United Kingdom has focused on confusion which occurs at the time of sale. However, in a number of recent decisions, most notably, Och-Ziff, it has been suggested that pre-sale or initial interest confusion may be actionable under registered trade mark law.Although initial interest confusion has had a recent ‘moment in the limelight’, there is authority to support its recognition dating back at least a decade. However, one of the main obstacles to the recognition of initial interest confusion is identifying the damage involved. This has caused particular difficulties in relation to passing off, which has been the subject of a previous article in this journal (see B. Allgrove & P. O'Byrne, ‘Pre-sale misrepresentations in passing off: an idea whose time has come or unfair competition by the back door?’ (2006) 1 JIPLP 413). The extent to which initial interest confusion can cause damage and whether damage is indeed needed for the confusion element of registered trade mark infringement is considered in this context.Recognition of initial interest confusion has a number of potential applications in both the online and offline world. However, it is argued that judging the merits of initial interest confusion in isolation is too limiting. Instead, any form of ‘operative confusion’, i.e., which has an effect on how consumers behave, should be actionable.