The Initial Interest Confusion Doctrineand Trademark Infringement on the Intemet

I. Introduction The recent explosive growth of the Internet as a vehicle for commerce and expression of ideas has brought with it an explosion of trademark litigation. Trademark law traditionally has been an area where the most prominent features are "doctrinal confusion, conflicting results, and judicial prolixity,"1 and this is even more true in the area of Internet trademark law. As the United States Senate noted when it recently enacted a bill to help bring some certainty to this murky area, "uncertainty as to the trademark law's application to the Internet has produced inconsistent judicial decisions and created extensive monitoring obligations, unnecessary legal costs, and uncertainty for consumners and trademark owners alike."2 Applying trademark law to the Internet presents difficulty because trademark infringement traditionally has required a likelihood of confusion among consumers to be actionable, and courts have had difficulty fitting the special nature of Internet confusion into this framework. Many courts have lost sight of the fact that trademark law traditionally has required reasonableness on the part of consumer3 and have expanded the likelihood of confusion in Internet cases to protect consumers who are "gullible, careless, and easily deceived."4 Courts have done this by stretching traditional trademark concept to make actionable the initial confusion of Internet users who arrive at a site other than the one they are searching for. This form of confusion is known as "initial interest confusion" because of the possibility that potential customers, looking for the web site of company A, will be diverted to the web site of company B and decide to use the offerings of company B's infringing site instead.5 Since a major Ninth Circuit decision in April 1999 explicityl applied initial interest confusion in the Internet context for the first time,6 courts have employed this doctrine with alarming regularity.7 Some of these courts have stretched the doctrine to the point where it not longer serves the basic goals of trademark law.8 Part II of this Note provides a brief introduction to the Internet, particularly the mechanics of search engines and metatags.9 Part III discussess the dual goals of trademark law and the federal cause of action for trademark infringement.10 Part III also outlines the development of the initinal interest confusion doctrine and its sporadic use before the appearance of the Internet.11 Part IV examines how the initial interest confusion doctrine has been applied in Internet trademark infringement actions with increasing frequency in the past two years.12 This section discusses application of the doctrine to two distinct types of infringement claims: metatagging and domain names.13 Part V discusses some of the problems with application of the initial interest confusion doctrine on the Internet and the troubling implications it raises for technological innovation and First Amendment rights.14 Part VI proposes a framework for courts analyzing claims of trademark infringement on the Internet based on initial interest confusion.15 This Note concludes that the increasing frequency with which courts have been willing to find a likeihood of confusion (and therefore trademark inBeing) based solely on initial interest confusion has potentially troubling consequences for the continued growth and maturation of the Internet. The Note suggests that initial interest confusion should be a basis for a finding of trademark infringement only when this confusion is likely to cause competitive damage.16 The Note also suggests that the recently enacted federal trademark dilution and anticybersquatting statutes provide a better framework for analyzing many claims that courts have attempted to shoehorn into the traditional infringement framework.17 II. The Internet A. The Web and Domain Names The Internet is a global network connecting millions of individual computers and computer networks. …