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Copyright (c) 2004 The Seattle University Law Review
Seattle University Law Review

ARTICLE: The Road Not Taken: Initial Interest Confusion, Consumer Search Costs, and the Challenge of the Internet

Fall, 2004

28 Seattle U. L. Rev. 97

Author

Michael Grynberg *

Excerpt

Yesterday I went shopping for soy milk. I usually buy the "Silk" brand. A carton of plain Silk is light-red with white lettering. Beneath the lettering is a picture of soy milk pouring and splashing into a bowl of cereal. At the store's soy milk display, a light-red carton with white lettering over a picture of soy milk pouring and splashing (but no cereal) caught my eye. Closer inspection revealed that it was not Silk (which was placed directly above in the store's display), but a store brand with its own prominent trademark. I compared the ingredients (identical), bought the cheaper Silk substitute, and saved a dollar. Though the outcomes of trade dress cases are often hard to predict, the store brand's copying of the Silk carton was likely legal.

Suppose instead that I do my grocery shopping on the Internet. Not knowing where to buy soy milk (and not knowing any brand other than Silk), I might have typed "Silk" and "soy milk" into a search engine. My result list would likely include the Silk web page. 1 But what if the store brand had a web site that incorporated the word "Silk" on its page in order to be included in my results list? Though no more confusing to me as a consumer than the mimicked trade dress, this act would give Silk a likely cause of action for "initial interest confusion." This article critiques trademark claims based on initial interest confusion and ...
 
 
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