Whether courts can impose liability for a likelihood of consumer confusion in a trademark infringement action based on a consumer's initial interest in a mark, even where that consumer is not confused as to source at the time the consumer executes a purchase

QUESTION PRESENTED Trademark infringement claims are intended to ensure consumers are not confused as to the source of goods; indeed, the consumers’ best interests lie at the heart of the policy underpinning trademark law. Two decades ago, as courts grappled with the application of trademark law to the new Internet context, a minority of federal courts of appeals adopted a doctrine known as “initial interest confusion.” Pre-sale, initial interest confusion as adopted here could impose liability for trademark infringement that occurs when a consumer first sees a mark online, even if the consumer does not ultimately make a purchase while confused as to source. For example, liability may be imposed based simply on results returned by a search engine where no purchase is made and where no sale is lost—..e., there is no concrete harm. In the intervening years since its initial adoption, this doctrine has fallen out of favor and been sharply criticized as out of touch with how consumers use search engines. It assumes that a consumer’s search for a trademarked name means that trademark owner’s website is the only result of interest to the consumer—an assumption that is both outdated and inaccurate. Nonetheless, the Eighth Circuit adopted this doctrine for the first time— despite that it has been rejected by the First, Fourth, and Eleventh Circuits and narrowed by every Circuit that recognizes it—holding that a defendant may be liable for a likelihood of consumer confusion outside the mark’s full context in a consumer’s purchasing decision. The question presented is: whether courts can impose liability for a likelihood of consumer confusion in a trademark infringement action based on a ii consumer’s initial interest in a mark, even where that consumer is not confused as to source at the time the consumer executes a purchase.