sale confusion lack justification. But once one takes a corporate brand perspective they make sense.231 The initial interest confusion doctrine tries to prevent the following situation: A consumer is drawn to a provider of goods or services because of a name or logo; the consumer arrives at the provider’s place of business and quickly realizes that this provider is not the one the consumer was seeking; the provider, however, offers the same or almost the same goods, and the consumer decides that it is best to close the deal with the provider. In such a scenario, the consumer is not confused by the time she purchases the good, and the doctrine has little to do with rational choice problems that traditionally animate trademark law.232
Instead, the doctrine prevents one from diverting potential customers’ attention and protects the inchoate idea of goodwill.233
By
229. See generally Dinwoodie, supra note 203, at 475 (“The expansion of Lanham Act coverage to include product design has severely stretched the capacity of the existing concept of distinctiveness to determine the appropriate boundaries of protectable subject matter.”).
230. DANESI, supra note 37, at 60–67 (detailing the importance of product and package design through the examples of the automobile, perfume, and tobacco industries); MOOR,supra
note 57, at 26–27 (citing HAROLD LIVINGSTON VAN DOREN,INDUSTRIAL DESIGN:APRACTICAL
GUIDE 13 (1940)). Beebe explains that we may be living in a “Diamond Age” where the increasing ability persuasively to imitate relative goods (though without necessarily imitating their absolute utility) anticipates what social role intellectual property law might play in such an environment. For what the mimetic technologies discussed above ultimately predict is a kind of post-rarity world, perhaps one in which certain material forms of absolute utility remain scarce, but persuasive copies of material forms of relative utility become superabundant.
Beebe, supra note 31, at 834–36.
231. See Austin, supra note 33, at 853, 896–98, 902–04.
232. See generally Jennifer E. Rothman, Initial Interest Confusion: Standing at the Crossroads of Trademark Law, 27 CARDOZO L.REV. 105 (2005).
233. See, e.g., Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1062
protecting the reputation and drawing power of a mark, courts enhance a company’s ability to pursue a brand strategy that seeks to move beyond single-sale, utilitarian relationships to an ongoing one where the consumer seeks out the company brand repeatedly regardless of product, place, price, or promotion. As one commentator points out, this doctrine disfavors comparative advertising, reduces competition, and impinges on speech even by a noncompetitor,234 all of which aid corporate brand goals while diminishing the noncorporate brand interests.
Post-sale confusion protects brands more openly and provides another example in which the consumer is not confused and search costs are not at stake. In post-sale confusion cases, the consumer knows that she bought a knock-off Gucci bag or Rolex watch. The doctrine in part holds that the harm lies in others aside from the consumer possibly being fooled into thinking that the item was genuine; thus, the doctrine attempts to protect the prestige of the mark.235 This aspect of the doctrine explicitly looks to protecting the status dimensions of a mark. In a touchstone case regarding the issue of allowing individuals to make and sell facsimiles of an original work, the U.S. Court of Appeals for the Second Circuit explained that the problem lay in allowing someone to make the facsimile of the original and sell it so that the consumer could “acquir[e] the prestige gained by displaying what many visitors at the customers’ homes would regard as a prestigious article.”236
Other iterations of the doctrine reveal deeper brand protections. When courts hold that the doctrine seeks to prevent the impression that an item is no longer scarce, they are protecting a business world that turned to branding precisely because of a marketplace where the goods themselves were not distinct but instead overabundant.237 Companies use brands as levers to allow the creation of distinction and scarcity where none was present. Post-sale confusion goes directly to that interest, as well.238
‘MovieBuff’ to its web site, West Coast improperly benefits from the goodwill that Brookfield developed in its mark.”); accord Rothman, supra note 232, at 121 (discussing Brookfield).
234. See Rothman, supra note 232, at 130–59. 235. See Lunney, supra note 144, at 404–08.
236. Mastercrafters Clock & Radio Co. v. Vacheron & Constantin-Le Coultre Watches, Inc., 221 F.2d 464, 466 (2d Cir. 1955).
237. See Beebe, supra note 31, at 851–55 (tracing various forms of the doctrine as protecting status and consumption behaviors rather than confusion over source).
238. See Austin, supra note 33, at 902 (“The value that consumers accord to prestige brands is enormously important to firms, as it enables them to charge premium prices for goods well above their marginal cost. The post-sale impression of goods may be critical to a brand’s success.” (footnote omitted)).