Rethinking Initial Interest Confusion And Consumer Sophistication In The Digital Age: Unarmouring The Under Armour At The DHC
SpicyIP
Rethinking Initial Interest Confusion And Consumer Sophistication In The Digital Age: Unarmouring The Under Armour At The DHC
By Aditya Bhargava
In trademark jurisprudence, the Initial Interest Confusion (IIC) test has long been used to address situations where a consumer’s initial attention is drawn by a mark similar to a well-known trademark, even if there is no confusion at the point of sale. However, the Delhi High Court’s recent handling of cases involving Forest Essentials and Under Armour raises questions about the continued relevance and applicability of the IIC test. This becomes further important given the DRS (Keyword Advertising) case that came before the DHC last year. (Read here)
In my last post, I detailed the Forest Essentials case and critiqued Justice Dayal’s interpretation of the IIC test. Through feedback from Akshat Agrawal (see comments in my earlier post) and members of the SpicyIP team, I realized it would be worthwhile to present an alternative perspective. Justice Dayal’s reading of the IIC test offers a different set of advantages in our rapidly evolving digital world. This interpretation prompts us to consider new questions, especially given the assumptions of consumer sophistication and the availability of information.
To support this stance, I examine the recent Under Armour case, where Justice Dayal has again sought to evolve the tests for assessing trademark confusion, particularly in the context of the growing e-commerce and smartphone penetration (Para 8.26 of Forest Essentials and 15.18 of the UA order). This approach underscores the need to reassess traditional tests like IIC to ensure they remain relevant in contemporary settings.
Note for the Readers: Justice Dayal’s order in the Forest Essentials case is currently under review by the Division Bench of the Delhi High Court. In the Under Armour case, Justice Dayal relied on his own order from Forest Essentials. The future of the Initial Interest Confusion (IIC) doctrine, regardless of the arguments made by me and other contributors to SpicyIP, hinges on how the Division Bench interprets IIC in the Forest Essentials case, which will also impact the Under Armour ruling. Notably, the Division Bench’s preliminary observations have not been favourable to Justice Dayal’s interpretation of IIC. It will be interesting to see how the IIC doctrine evolves in this context. Readers are invited to send in their thoughts on this as well!
Revisiting Initial Interest Confusion in the Context of Modern Consumer Behaviour
For the uninitiated, the Forest Essentials case involved a dispute where the plaintiff, Mountain Valley Springs, sought an injunction against Baby Forest for using similar branding. The plaintiff argued that the marks “BABY FOREST” and “BABY FOREST – SOHAM OF AYURVEDA” were deceptively similar to its established marks such as “FOREST ESSENTIALS” and related trademarks. The Court recognized the generic nature of the word “FOREST” and noted that consumers in the premium baby care market are sophisticated and unlikely to be confused by initial similarities. As a result, on 15th May, the court denied the injunction holding that confusion must exist throughout the transaction and initial confusion may not be enough to establish the likelihood of confusion. (Paragraphs 8.24 – 8.26)
On the other hand, the Under Armour case involved a global sportswear brand accusing the defendants of using the “AERO ARMOUR” mark, which Under Armour claimed was designed to confuse consumers and benefit from its brand reputation. Under Armour highlighted its extensive global trademark registrations and argued that the similarity in branding could mislead consumers. The Court (on 29th May) however, found that the differences in market segments and the overall branding strategies of the two parties were sufficient to prevent significant consumer confusion. (Para 12 onwards) Consequently, the Court denied Under Armour’s request for an injunction but imposed limitations on the defendants’ use of the “ARMR” element.
In both cases, Justice Dayal of the single-judge bench examined consumer behaviour in the digital age. In the Forest Essentials case, the Court acknowledged that consumers of premium baby care products are sophisticated, diligent, and resourceful. They would typically cross-check product origins and brands online before making a purchase, which reduces the likelihood of prolonged confusion. Similarly, in the Under Armour case, the Court recognized that modern consumers in the sportswear market are well-informed and use various resources to verify product authenticity, thereby minimizing the impact of any initial confusion.
However, where the difference lies is that in the Baby Forest case, the products and the product category are similar, targeting the same audience and price range. This can possibly lead to a higher likelihood of consumer confusion, as both brands cater to the same consumer base with similar pricing, increasing the chances of mistaken identity. In contrast, the Under Armour case involves products in the same category (apparel) but with distinct focuses: Under Armour on sportswear and Aero Armour on casual wear inspired by military themes. The price ranges also differ significantly ₹800 vs. ₹2000 (reliance placed on GUFIC Ltd. v. Clinique Laboratories, LLC), reducing the likelihood of confusion. Given these differences and the distinct consumer bases, placing the burden on the consumer to distinguish between the brands in the Under Armour case, in my opinion, isn’t unreasonable. But then, the follow-up question remains, how do we determine the sophistication of the consumer? What is the degree of diligence expected from a consumer? Would it vary as per the product, pricing or something else?
The Ephemeral Nature of Initial Confusion: Counter to My Previous Argument
The advent of e-commerce has fundamentally transformed the traditional retail landscape, undermining the relevance of the IIC test. Online shopping platforms provide consumers with immediate access to vast amounts of information, including product specifications, user reviews, and price comparisons. This digital environment enables consumers to make well-informed choices, thereby mitigating the impact of initial confusion which if any, is often transient. This transience is particularly evident in the context of both the abovementioned cases. In the Forest Essentials case, consumers are likely to engage in detailed research before purchasing premium baby care products and consumers seeking high-end sportswear are well-informed and rely on detailed product information, reviews, and comparisons available online. Hence any initial confusion caused by the “AERO ARMOUR” mark would be short-lived as consumers would soon realize the distinction between the brands through their research efforts.
In the digital age, do we even need the Initial Interest Confusion (IIC) doctrine to assess confusion? This doctrine assumes a level of consumer vulnerability that is no longer prevalent. It focuses on the initial capture of consumer attention, overlooking the subsequent stages of the consumer decision-making process. According to Justice Dayal’s understanding, modern consumers do not rely solely on their first impressions; they gather information, compare options, and make informed decisions. Rather than modifying the IIC to suit the current status quo—something that initiated the Division Bench’s intervention—I argue that it is better to discard the IIC test entirely and adopt a new framework that aligns with modern developments.
As argued by Eric Goldman, this new approach should consider the entire consumer journey, from the initial brand interaction to the final purchase decision, rather than focusing solely on the initial capture of consumer attention. This perspective is clearly explained by Justice Dayal in the Under Armour order, unlike the less clear interpretation in the Forest Essentials order. In Forest Essentials, it was difficult to determine whether Justice Dayal was interpreting the IIC differently or evolving a new test altogether. The attempt to modify the IIC conflated the idea of a new test that, among other factors, considered consumer sophistication and access to knowledge while making transactions. This ‘modification’ of the IIC prompted the Division Bench to take cognizance of the matter.
However, a reading of the Under Armour order, which also cites the Forest Essentials order, arguably clarifies Justice Dayal’s true intent. In Under Armour, a more clearly and lucidly written order backed by a thorough literature review, Justice Dayal has created guideposts that allow for addressing such cases without relying on one particular test or doctrine. One thing that is clear from both orders is that he believes the traditional reading of IIC is antithetical to the consumer sophistication that has evolved over the last decade. Another important point is that these guideposts should not be considered in isolation, especially given the proactive measures being taken by the legislature to reduce the likelihood of confusion on digital platforms and in e-commerce. One notable initiative is the Ministry of Consumer Affairs’ release of the Dark Pattern Guidelines 2023. It will be interesting to see how the courts integrate these guidelines with traditional trademark jurisprudence in the future.
Rethinking Initial Interest Confusion And Consumer Sophistication In The Digital Age: Unarmouring The Under Armour At The DHC
By Aditya Bhargava
In trademark jurisprudence, the Initial Interest Confusion (IIC) test has long been used to address situations where a consumer’s initial attention is drawn by a mark similar to a well-known trademark, even if there is no confusion at the point of sale. However, the Delhi High Court’s recent handling of cases involving Forest Essentials and Under Armour raises questions about the continued relevance and applicability of the IIC test. This becomes further important given the DRS (Keyword Advertising) case that came before the DHC last year. (Read here)
In my last post, I detailed the Forest Essentials case and critiqued Justice Dayal’s interpretation of the IIC test. Through feedback from Akshat Agrawal (see comments in my earlier post) and members of the SpicyIP team, I realized it would be worthwhile to present an alternative perspective. Justice Dayal’s reading of the IIC test offers a different set of advantages in our rapidly evolving digital world. This interpretation prompts us to consider new questions, especially given the assumptions of consumer sophistication and the availability of information.
To support this stance, I examine the recent Under Armour case, where Justice Dayal has again sought to evolve the tests for assessing trademark confusion, particularly in the context of the growing e-commerce and smartphone penetration (Para 8.26 of Forest Essentials and 15.18 of the UA order). This approach underscores the need to reassess traditional tests like IIC to ensure they remain relevant in contemporary settings.
Note for the Readers: Justice Dayal’s order in the Forest Essentials case is currently under review by the Division Bench of the Delhi High Court. In the Under Armour case, Justice Dayal relied on his own order from Forest Essentials. The future of the Initial Interest Confusion (IIC) doctrine, regardless of the arguments made by me and other contributors to SpicyIP, hinges on how the Division Bench interprets IIC in the Forest Essentials case, which will also impact the Under Armour ruling. Notably, the Division Bench’s preliminary observations have not been favourable to Justice Dayal’s interpretation of IIC. It will be interesting to see how the IIC doctrine evolves in this context. Readers are invited to send in their thoughts on this as well!
Revisiting Initial Interest Confusion in the Context of Modern Consumer Behaviour
For the uninitiated, the Forest Essentials case involved a dispute where the plaintiff, Mountain Valley Springs, sought an injunction against Baby Forest for using similar branding. The plaintiff argued that the marks “BABY FOREST” and “BABY FOREST – SOHAM OF AYURVEDA” were deceptively similar to its established marks such as “FOREST ESSENTIALS” and related trademarks. The Court recognized the generic nature of the word “FOREST” and noted that consumers in the premium baby care market are sophisticated and unlikely to be confused by initial similarities. As a result, on 15th May, the court denied the injunction holding that confusion must exist throughout the transaction and initial confusion may not be enough to establish the likelihood of confusion. (Paragraphs 8.24 – 8.26)
On the other hand, the Under Armour case involved a global sportswear brand accusing the defendants of using the “AERO ARMOUR” mark, which Under Armour claimed was designed to confuse consumers and benefit from its brand reputation. Under Armour highlighted its extensive global trademark registrations and argued that the similarity in branding could mislead consumers. The Court (on 29th May) however, found that the differences in market segments and the overall branding strategies of the two parties were sufficient to prevent significant consumer confusion. (Para 12 onwards) Consequently, the Court denied Under Armour’s request for an injunction but imposed limitations on the defendants’ use of the “ARMR” element.
In both cases, Justice Dayal of the single-judge bench examined consumer behaviour in the digital age. In the Forest Essentials case, the Court acknowledged that consumers of premium baby care products are sophisticated, diligent, and resourceful. They would typically cross-check product origins and brands online before making a purchase, which reduces the likelihood of prolonged confusion. Similarly, in the Under Armour case, the Court recognized that modern consumers in the sportswear market are well-informed and use various resources to verify product authenticity, thereby minimizing the impact of any initial confusion.
However, where the difference lies is that in the Baby Forest case, the products and the product category are similar, targeting the same audience and price range. This can possibly lead to a higher likelihood of consumer confusion, as both brands cater to the same consumer base with similar pricing, increasing the chances of mistaken identity. In contrast, the Under Armour case involves products in the same category (apparel) but with distinct focuses: Under Armour on sportswear and Aero Armour on casual wear inspired by military themes. The price ranges also differ significantly ₹800 vs. ₹2000 (reliance placed on GUFIC Ltd. v. Clinique Laboratories, LLC), reducing the likelihood of confusion. Given these differences and the distinct consumer bases, placing the burden on the consumer to distinguish between the brands in the Under Armour case, in my opinion, isn’t unreasonable. But then, the follow-up question remains, how do we determine the sophistication of the consumer? What is the degree of diligence expected from a consumer? Would it vary as per the product, pricing or something else?
The Ephemeral Nature of Initial Confusion: Counter to My Previous Argument
The advent of e-commerce has fundamentally transformed the traditional retail landscape, undermining the relevance of the IIC test. Online shopping platforms provide consumers with immediate access to vast amounts of information, including product specifications, user reviews, and price comparisons. This digital environment enables consumers to make well-informed choices, thereby mitigating the impact of initial confusion which if any, is often transient. This transience is particularly evident in the context of both the abovementioned cases. In the Forest Essentials case, consumers are likely to engage in detailed research before purchasing premium baby care products and consumers seeking high-end sportswear are well-informed and rely on detailed product information, reviews, and comparisons available online. Hence any initial confusion caused by the “AERO ARMOUR” mark would be short-lived as consumers would soon realize the distinction between the brands through their research efforts.
In the digital age, do we even need the Initial Interest Confusion (IIC) doctrine to assess confusion? This doctrine assumes a level of consumer vulnerability that is no longer prevalent. It focuses on the initial capture of consumer attention, overlooking the subsequent stages of the consumer decision-making process. According to Justice Dayal’s understanding, modern consumers do not rely solely on their first impressions; they gather information, compare options, and make informed decisions. Rather than modifying the IIC to suit the current status quo—something that initiated the Division Bench’s intervention—I argue that it is better to discard the IIC test entirely and adopt a new framework that aligns with modern developments.
As argued by Eric Goldman, this new approach should consider the entire consumer journey, from the initial brand interaction to the final purchase decision, rather than focusing solely on the initial capture of consumer attention. This perspective is clearly explained by Justice Dayal in the Under Armour order, unlike the less clear interpretation in the Forest Essentials order. In Forest Essentials, it was difficult to determine whether Justice Dayal was differently interpreting the IIC or evolving a new test altogether. The attempt to modify the IIC conflated the idea of a new test that, among other factors, considered consumer sophistication and access to knowledge while making transactions. This ‘modification’ of the IIC prompted the Division Bench to take cognizance of the matter.
However, a reading of the Under Armour order, which also cites the Forest Essentials order, arguably clarifies Justice Dayal’s true intent. In Under Armour, a more clearly and lucidly written order backed by a thorough literature review, Justice Dayal has created guideposts that allow for addressing such cases without relying on one particular test or doctrine. One thing that is clear from both orders is that he believes the traditional reading of IIC is antithetical to the consumer sophistication that has evolved over the last decade. Another important point is that these guideposts should not be considered in isolation, especially given the proactive measures being taken by the legislature to reduce the likelihood of confusion on digital platforms and in e-commerce. One notable initiative is the Ministry of Consumer Affairs’ release of the Dark Pattern Guidelines 2023. It will be interesting to see how the courts integrate these guidelines with traditional trademark jurisprudence in the future.