Initial Interest Confusion Online- Cyberlaw Wiki Post

Here is my Cyberlaw wiki post that initially discusses the Brookfield Communications vs West Coast Video case (summary here). I then posit a new framework for thinking about initial interest confusion online

I find the decision of the court in Brookfield Communications to be slightly troubling. The highway analogy employed by the court was at first blush a convincing argument that West Coast had acted unfairly. However, if one considers the decision in relation to the real world concept of generic products the decision becomes less firm. Trademark law has deemed it appropriate for Duane Reade to place a generic form of Advil right next to Advil on a product shelf. The Duane Reade generic box is permitted to have similar coloration and to even have a similar shape. The box is even allowed to include the brand name Advil on it and say that consumers should compare ingredients to the original Advil. Clearly this analogy can be applied to the online world. While it admittedly doesn’t seem appropriate for one company to use a competitor’s brand name in their metatags, let us think about the result of such an action. Compare Google search results to a product shelf. If a person googles “moviebuff”, Brookfield’s webpage would presumably pop up next to West Coast’s. Each page would have a description below it including the terms moviebuff, from which it could or could not be clear which one was which. Assuming it was clear which one is Brookfield’s then there is no question that West Coast has not caused any confusion and should prevail. Assuming there is some confusion as to the website and a person clicks on West Coast’s site, it would either become apparent to them that they were at the wrong site (and they would click “Back” and find Brookfield’s site) or choose to stay on West Coast’s site with similar services. I don’t really see that much of a difference between this and staring at a product shelf. When a customer is choosing between an original and a generic juxtaposed with each other in the physical world, one can think of the thought process as an economic equation:

Perceived difference in quality (Qual Diff)+ strength of original brand name (Brand S.) WEIGHED AGAINST the difference in price between the two products
If
(Qual Diff) + (Brand S.) > (Price Diff) then the consumer would choose the original.
And if the opposite holds true
(Qual Diff) + (Brand S.) < (Price Diff) then the consumer would choose the generic product Now let’s think about how to apply this to the online context when comparing sites where the product is information, and the consumer has mistakenly clicked on the competitor’s website rather than the original. Here the ultimate act is not purchasing a product but rather viewing the site. So in my opinion the equation would look something like this: (Perceived difference in quality) + (Brand strength of original) WEIGHED AGAINST (The cost of finding the original website) If the viewer has any attachment to the original site or any estimation of its quality they would presumably take the couple seconds necessary to click back to the search engine and find the original. This equation also reveals the shortcoming of the highway analogy. As constructed by the court, the price difference/cost is to get back in the car and drive another exit. This really isn’t an appropriate comparison to the seconds necessary to find the desired website, and so the court really shouldn’t have attempted the analogy in the first place. Now, comparing the real-world equation versus the online equivalent leads me to a couple of conclusions: 1. The cost in the online world appears to be less than the cost in the real world. This is of course a gross generalization. But if one takes the time to stroll down the aisles at Duane Reade there is generally a significant price discrepancy between the original and the Duane Reade equivalent. While it doesn’t seem fair to compare dollars to seconds, I think that it isn’t patently unfair to come to my first conclusion. (If you really want to make this a mental exercise, you would have to figure out
2. The smaller the cost/price difference, then the less likely the generic will steal market share from the original. This is relatively straightforward from the equation.
3. If 1 and 2 hold true, then online competitors should be permitted to compete in this fashion. In the real world, generics take significant market share from the original because they can produce similar products at a much lower price. In the online world, the “generics” face a much stiffer obstacle when competing with the originals, because the cost of finding the originals is so small. If generic products are allowed to compete so efficiently in the physical world it is a double standard to not permit placing competitor’s brand names in metatags when the only practical consequence is landing next to the original in a search engine result. This whole discussion doesn’t even factor the idea of nominative fair use into the analysis, which I feel would further strengthen the argument that such practices aren’t antithetical to the principles of trademark law.