Division Bench Stands Strong On The ‘Initial’ concept Of ‘Initial Interest Confusion’

INTRODUCTION

Through this article, the author aims to highlight the problem of   Initial interest confusion which relates to the confusion that occurs prior to the moment of purchase when the person realizes that he is not purchasing the same product that he had considered purchasing. He gradually develops a liking for the product as a result of the initial interest sparked by various factors. The major factor influencing this confusion is to use of another person’s trademark as an indicative tag. The Delhi High Court in a recent order in the case of Mountain Valley Springs India Private Limited v Baby Forest Ayurveda Private Limited & Ors reversed the order of the single-judge bench in the same case, stating that the Single Judge had erred in refusing to grant interim relief to Ayurvedic cosmetics, skincare and perfume company Forest Essentials in a trademark dispute against Ayurvedic baby care products company Baby Forest.

The Division Bench noted that the single judge bench had interpreted the theory of “initial interest confusion” incorrectly, interpreting it to mean that uncertainty would continue until the start of the commercial transaction. The bench made it clear that a misunderstanding only exists during the first phases and disappears after the sale and by the time the transaction is finalized. Once the buyer has bought the product, there is absolutely no room for hesitation. The theory seeks to clarify the uncertainty that arises before the customer seeks to purchase the product.

INITIAL INTEREST THEORY IN TRADEMARK LAW

The Doctrine discusses any word, term, name, symbol or device that leads to any kind of misleading description of fact, or false or misleading representation of fact which is very likely to cause confusion. This doctrine is predominantly used in the context of Internet commerce and marketing, where consumers are initially drawn to a product or service based on the misleading use of a trademark. It has to do with the perplexity that arises prior to making a purchase and the realization that he is not getting the same product that he had considered, but also the fact that he has grown to like the product because of his initial interest in it for whatever reason. Some of the key factors that are pivotal for initial interest confusion are, ‘Initial attraction’ of the doctrine where the initial attention is captured, and ‘Confusion’ where the confusion is enough to attract the infringer’s product due to misleading use of the trademark, ‘Economic impact’ where the important concern is the unfair advantage gained by capturing consumer attention and finally ‘Social advertising’ where the influence of the confusion is portrayed through online websites, search engines, meta tags and online advertisements.

One of the cases that has highlighted the problem of using metatags in drawing consumers towards its own website is the case of   Consim Info Pvt Ltd v Google India Pvt Ltd and Orso. In this case, the courts emphasised that the likelihood of confusion would occur at the time of purchase. The Judges pointed out that in the internet context, users are usually diverted by a trademark owner’s website on two counts, one being either by identical or confusingly similar domain names to websites in competition with the trademark owner or by a competitor’s unauthorised use of another’s mark as the keyword to generate banner or pop up advertisements for its products and services.   

FOREST ESSENTIAL CASE

The Single Judge Bench of the Delhi High Court in the month of May had dismissed the plea filed by skincare and cosmetics brand Forest Essentials seeking to restrain another brand from using the marks “Baby Forest” and “Baby Forest Soham of Ayurveda” while they were selling baby care products. The court observed that the word ‘Forest’ itself is generic and Forest Essentials cannot claim dominance over the Trademark, having no registration under section 17(2) of the Trademark Act. They stated that ‘FOREST NECTAR’ which was another brand had been registered in class 3 since 1997, which was much prior to that of the plaintiff’s mark since 2002. For the plaintiff to claim monopoly over the mark ‘FOREST’ which itself is a commonly used word is not tenable. The plaintiffs had argued that ‘FOREST’ and ‘ESSENTIALS’ together underscores the basic stand of uniqueness, since they are used together as a unique combination. Therefore they stated that the anti desecration rule should be applied to them. 

The Courts observed that the defendants only sold 2.26 crores of items, whereas the plaintiffs had sold quantities worth Rs. 15 crores, according to the court, and this did not allow them any form of right to appropriate the mark associated with “FOREST.” The single  judge bench noted that the “Initial interest confusion test” would not be applied rigidly. The rationale that has been deduced through the order is that due to internet and smartphone access, even a client with ordinary intelligence and imperfect memory may access a wealth of information and services. An average consumer would often conduct research prior to making a purchase based on an initial impression or question which he./she may have and would want to re check the originality of the product. Thus, the Judges observed that confusion, if it existed at all in the beginning, would not last very long and may be ephemeral, transient, since an average customer will obviously be promoted to do a niche fact check.  Nowadays, the journey of the modern consumer is guided by total awareness before purchasing anything.

The Division Bench has negated the views of the Single Judge Bench stating that the trademark in question has been used by the appellants for a considerable period of time. Whereas, the respondents have started using the trademarks recently in the year 2022. They stated that the Single judge had erred in its interpretation of the doctrine of ‘Initial interest confusion’. They have observed that the Single Judge was wrong to presume that a prudent customer would often conduct ‘research’ prior to making a purchase and that this interpretation wasn’t at all practical. They reiterated that the doctrine of initial interest confusion entails that there is confusion only at the initial stage and there is no confusion when the transaction for sale and purchase is completed. Therefore, the Division Bench has allowed the appeal of the plaintiffs and are ready to hear the arguments finally after briefly understanding the same.

CONCLUSION 

In trademark law, the idea of early interest confusion continues to be a crucial yet controversial topic. Its main purpose is to shield trademark owners against unfair competition and financial loss resulting from deceptive use of their marks, especially in the digital sphere. The theory aims to protect brand identity and consumer trust by addressing circumstances in which customers are initially enticed to a product or service based on a confusingly similar trademark.

Author – Aditi Arora, Associate

Co-Author-  Ayushman Das, Intern