Initial Interest Confusion “Internet Troika” Abandoned? A Critical Look at Initial Interest Confusion as Applied Online

Connie Davis Nichols · 17 Vand. J. Ent. & Tech. 4

Abstract

The Ninth Circuit’s opinion in Brookfield Communications, Inc. v. West Coast Entertainment Corp. seemingly created a standard to be applied in trademark infringement cases on the Internet. Despite the cautions contained within the Ninth Circuit’s holding, Brookfield ushered in an era in which many courts placed emphasis on three factors of the “likelihood of confusion” test finding initial interest confusion in many online infringement cases based solely on these three factors. For over a decade, inconsistent application within the Ninth Circuit and other jurisdictions created a disjointed body of case law on initial interest confusion online. The Ninth Circuit’s opinion in Network Automation, Inc. v. Advanced Systems Concepts, Inc. provides some clarity but necessitates a review of the applicable standard when determining infringement online. This Article evaluates and reviews the Ninth Circuit’s opinions in Brookfield and Network Automation and a sampling of circuit cases that have considered initial interest confusion in an online context. This Article suggests that the Ninth Circuit in Network Automation sought to clarify its holding in Brookfield and to reject subsequent holdings that misapplied the likelihood of confusion test in order to eliminate divergent holdings, most evident within the Ninth Circuit itself, regarding the appropriate analysis of trademark infringement online. The Article concludes by arguing that the likelihood of confusion factors are flexible enough to address emerging technology without the cookie-cutter approach created by the misapplication or interpretation of Brookfield that was the “Internet Troika.”