Suppose you walk into a greasy cheeseburger joint and ask for a Coke. A cook who looks remarkably like the late John Belushi doesn’t say, “No Coke; Pepsi.” Instead, he says, “You want Coke? Have a Pepsi!” and you buy the Pepsi. Does Coke have a claim that you were confused into buying Pepsi? That you considered Pepsi only because the cook mentioned it? That you might think Pepsi and Coke are related or somehow interchangeable?
Most courts considering this in the brick-and-mortar world would be quick to throw out Coke’s claims. We often see competing goods on store shelves, side by side, and sometimes we buy whatever they are selling even if we start out looking for something else. However, there has been a line of (controversial) cases that have held that “initial interest confusion” can exist, so that the use of brand names to interest customers in competing products gives rise to a claim by the company whose trademark is allegedly misused.
Last month, Amazon.com Inc. failed to get out of such a case in its early stages, in a ruling by the Ninth Circuit Court of Appeals that may send the case to trial.