PLAYBOY ENTERPRISES INC. V. NETSCAPE COMMUNICAITONS CORP.: MAKING CONFUSING A REQUIREMENT FOR ONLINE INITIAL INTEREST CONFUSION

In response to the proliferation of online trademark uses, courts have expanded trademark doctrine to cover more trademark uses that ever before. Multi-billion dollar advertising enterprises, organized around aggressive advertising business models, are bent on using trademarks in myriad new ways to effectively target consumers and generate revenue. Courts and trademark owners show dedication in the opposite direction: they seek to protect trademarks and expand trademark law. With so much at stake, it is critical that courts apply the correct doctrines in the correct fashions. Unfortunately, some courts are not getting it right, and the doctrine of initial interest confusion has been gravely misapplied in many cases. Online initial interest confusion doctrine is to often tainted with the type of simplistic goodwill analysis found in Brookfield. This type of analysis is removed from the foundation of trademark law and leads courts down an unpredictable road. The alternative analysis is grounded in consumer protection principles and manifest in the Sleekcraft factors as applied in the Playboy decision. Using Playboy as a starting point, the online initial interest confusion doctrine can be supplemented with Internet-specific considerations, and online initial interest confusion can be set on the right track.