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Green products Co.

Vs Independent Corn by products


(1997): Damage due to initial consumer Confusion
Project report

SUBMITTED ON:
October 08, 2017

HIDAYATULLAH NATIONAL LAW UNIVERSITY


Uparwara Post, Abhanpur, New Raipur – 492001 (C.G.)

Submitted to: Submitted by:


Mrs. Debmita Mondal Shashwat Jain
(Faculty: Cyber Law) Roll no. 147 Sem VII
DECLARATION

I, Shashwat Jain, Hereby declare that, the project work titled “Green products Co. Vs
Independent Corn by products (1997): Damage due to initial consumer Confusion” submitted to
H.N.L.U., Raipur is record of an original work done by me under the able guidance of Mrs
Debmita Mondal, Assistant Professor, H.N.L.U., Raipur.

- Shashwat Jain
Semester – VII
B.A. LL.B. (Hons.)
Roll no. – 147

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ACKNOWLEDGEMENTS

First and foremost I would like to thank Mrs Debmita Mondal, faculty Corporate Law,
Hidayatullah National Law University Raipur, for creating opportunities to undertake such a
valuable project. She helped me in preparing the project through her aura and granting hiher
precious time for consultation, discussion and giving suggestions over this project. She had also
helped me in improving the perception regarding the study of topic in its vast resources and in
broader way. He had cleared all doubts and uncertainty towards this project. Therefore, I want to
thank her, for all her efforts and cooperation which he conferred to me.

I thank, almighty God, who bestowed and showers his blessings upon me and provided
with the gift of intellect to work on such topic with full dedication and intelligence.

I also owe my gratitude towards University Administration for providing me all kinds of
required facilities with good Library and IT lab. This helps me in making the project and
completing it. My special thank to Library Staff and IT staff for equipping me with the necessary
data and websites from the internet.

Shashwat Jain
Roll no: 147
Semester VII
Sec. - ‘A’

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TABLE OF CONTENTS
Chapter one- ................................................................................................................................... 8
Initial Interest Confusion................................................................................................................. 8
Chapter Two: Case Summary ........................................................................................................ 10
Chapter Three ............................................................................................................................... 12
Doctrine of Initial Interest Confusion in Green product company vs. Independent Corn by
products Co. .................................................................................................................................. 12
Chapter Four: Analysis of Data phase Factors .............................................................................. 13
1. Probability that Green Products will succeed on the merits ................................................ 13
2. Irreparable harm to Green Products ..................................................................................... 16
3. Balance between this harm and the injury that granting the injunction will inflict on other
parties........................................................................................................................................ 17
4. Public interest........................................................................................................................ 18
Conclusion ..................................................................................................................................... 19
Bibliography .................................................................................................................................. 19

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INTRODUCTION

Whenever a person wants to buy something, he starts with searching for the best option available
in the market. There are various mediums of doing so in the contemporary time as compared
from the time when the mediums were limited. Now a person has an option of window shopping,
searching for the same through magazines, relying on the advertisement and promotion of the
company related to the product and then he also have an option of searching on the internet and
website of the particular brand. The choice of product depends upon various ingredients which
are involved in a process of buying like the qualities of a product, budget of the person etc but
one of the ingredient which is not involved earlier but with the emergence of time it has become
one of the most important factor in the choice of the product i.e. initial interest involved.

A product sale apart from the other factors is also dependent upon the initial interest of the
consumer involved in a product. Although a product has its sales because of its quality then also
a share of the sale is because of reason of the initial interest of the consumer in the product. The
initial interest confusion should not be baffled with the confusion related to the identity of the
two trademarks. It is related to the confusion related to the time of searching for a product. The
initial period when a person is looking for a product is very crucial and it is during this period
that the initial interest confusion has its origin. The way by which a seller is able to draw
attention of a consumer towards its product and how genuine his efforts are in drawing the
consumer towards its product would help in deciding whether the same is infringement or not.

The initial interest theory has its origin from the judicial interpretation provided by the various
courts around the world. The interest developed in a product because of its own qualities and the
goodwill of the product itself is not a wrong in the legal sense but when the initial interest
developed is because of unlawful use of the trademark, goodwill and name of a product then it
would be treated as an infringement as held in the various cases around the world.

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The initial interest confusion is related to the confusion before the time of purchase, it should not
be mystified with the confusion at the time of purchase. It involve the time when a person has
decided that he needs something and has not reached the place from where he has to buy that
product hence the initial interest confusion does not come into picture when the person has
reached the place from where he needs to buy that product and has got confused because he saw
two marks similar to each other.1

1
Consim Info Pvt. Ltd Vs. Google India Pvt. Ltd. and Ors .MANU/TN/1816/2010

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Objective
 To discuss the concept of ‘Initial interest confusion or Initial Consumer consumer’.
 To know about the damage it can cause to trademark.
 To relate the abovementioned concept with the case Green product company vs.
Independent corn by products Co.

Source of data
In order to accomplish the objective stated above the methodology followed is of descriptive
nature based on secondary sources, i.e., books and electronic sources (internet). Secondary and
electronic resources have been used extensively to gather data about the topic. Books and other
reference as guided by the concerned faculty have been primarily helpful in structuring the
project. Websites, dictionaries and articles have also been referred to. Footnotes have been
provided wherever needed to acknowledge the sources.

Mode of Citation
The project follows the uniform citation of Bluebook Standard form of Citation 19th edition.

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CHAPTER ONE-

INITIAL INTEREST CONFUSION

The initial interest confusion phenomenon is a recent development due to the development of
modern mode of sales and purchase specially internet. The way of purchasing the product is
changed with the passage of time and so is the way of selling a product. The latest development
in the marketing has also led to the vigorous competition between the rival brands. The line
between the fair use of others trademark or trade name and unauthorized use of the same is very
thin. The development of provision of the trademark law has led to the establishment of the new
theories related to the modern use of the trademark. Initial interest confusion doctrine is the
development of the contemporary interpretation of the trademark law. Initial interest confusion
has its origin from the use of other's rights for own benefits. It is related to the time period
wherein the consumer has decided to buy a particular product. While he is searching for his
choice of product he came across other products similar to the one he was searching for and
instead of buying the product of his choice at the first instance he ends up buying another one
due to the reason of his interest developed for the other product due to the method adopted by the
others to promote his product. The use of the others trademark for the promotion of one's own
product would decide whether the method used is infringement or not. Initial interest confusion
is been treated as infringement in various cases around the world.

Trademark infringement under the initial interest confusion doctrine occurs when a product
generates initial customer interest by using another's trademark, even if the customer never
actually buys the infringing product.2 In the context of an Internet case, initial interest confusion
is evaluated primarily on two factors: (1) the relatedness of the goods and (2) the level of
consumer sophistication and care.3 These factors are important because consumers are most
likely to experience initial interest confusion when the goods are related and consumer
sophistication is low.4 When the goods are not related, and consumer sophistication is high,

2
MCCARTHY ON TRADEMARKS, supra note 2, 23:6, at 23-28.
3
Perfumebay.com, Inc. v. Ebay Inc., 506 F.3d 1165, 1176 (9th Cir. 2007)
4
See Interstellar Starship Servs., Ltd. v. Epix, Inc. (Interstellar Starship 11), 304 F.3d 936, 945 (9th Cir. 2002)

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initial interest confusion is less likely to occur. Nevertheless, a complete likelihood of confusion
analysis is essential in evaluating initial interest confusion over the Internet.5

In Bigstar Ent., Inc. v. Next Big Star, Inc.,6 the District Court for the Southern District of New
York discussed the ways in which initial interest confusion could damage a plaintiff.7 The
diversion of initial interest and the resulting relevant confusion under this doctrine relate to what
draws the consumer to the other location in the first place. Even if the customer quickly becomes
aware of the competing source’s actual identity and can rectify the mistake, the damage to the
first user that the courts have identified manifest in three ways:
 The original diversion of the prospective customers’ interest;
 The potential consequent effect of that diversion on the customer’s ultimate decision
whether or not to purchase caused by an erroneous impression that two sources of a
product may be associated and;
 The initial credibility which may be accorded by the interested buyer to the junior user’s
products--customer consideration that otherwise may be unwarranted and that may be
built on the strength of the senior user’s mark, reputation and goodwill.
Nevertheless, the application of the initial interest confusion doctrine in the Internet context has
been widely criticized.

5
Perfumebay.com, 506 F.3d at 1176.
6
105 F. Supp. 2d 185, 54 U.S.P.Q.2d 1685 (S.D.N.Y. 2000).
7
See id. at 207, 54 U.S.P.Q.2d at 1700.

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CHAPTER TWO: CASE SUMMARY
Green products Co.
Versus
Independent corn by products Co.
992 F. Supp. 1070 (N.D. Iowa, Sept. 25, 1997)

Plaintiff and defendant are competitors in the corn by-products industry. Defendant registered
the domain name "greenproducts.com" which was markedly similar to plaintiff's federally
registered trademark "Green Products." Defendant alleged that it intended to post a website at
"greenproducts.com" that would "distinguish [defendant's] products from those of [plaintiff]
Green Products through comparative advertising." As of the date of suit, however, defendant had
not operated a website at "greenproducts.com."

Plaintiff, alleging that defendant's conduct constituted trademark infringement in violation of the
Lanham Act, sought a preliminary injunction, directing defendant both to stop using Green
Products in its domain name, and to transfer ownership of the domain name
"greenproducts.com" to plaintiff during the pendency of the lawsuit. The Court found that
plaintiff was likely to prevail on the merits and granted the relief sought.

To establish trademark infringement, it is necessary to show that defendant's conduct is likely to


cause consumer confusion. The court found that the requisite showing needed for injunctive
relief had been made, even though defendant had not yet operated a website. Defendant argued
that its website would not confuse the public because it would prominently state that the site was
not affiliated with, nor sponsored by Green Products. In rejecting this argument, the court said:

[Defendant's] argument is analogous to saying that [defendant] has the right to hang a sign in
front of its store that reads "Green Products." When customers enter the store expecting to be
able to see (and possibly, to buy) products made by Green Products, [defendant] then announces
'Actually this store isn't owned by Green Products; it's owned by [defendant]. We don't sell
anything made by Green Products, but as long as you're here, we'll tell you how our products
are better than Green Products." In essence, [defendant] is capitalizing on the strong similarity
between Green Products' trademark and [defendant's] domain name to lure customers onto its
web page. ... This Court finds that such a deceptive use of a competitor's trademark as a way to
lure customers away from the competitor is a kind of consumer confusion.

The Court directed defendant to transfer the domain name to plaintiff during the pendency of the
lawsuit because of the risk of irreparable injury plaintiff faced should the name remain in

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defendant's hands. Mindful that Internet users could look up the identity of a domain name's
owner, the Court stated:

Users who do this will learn that [defendant] owns the "greenproducts.com" web site ...
Potential customers who see this information may be confused into thinking that [defendant] has
taken over Green Products, or that Green Products has merged into [defendant]. As a result,
customers may decide Green Products no longer exists or that [defendant] now owns it. The
consumer confusion thereby caused by [defendant's] ownership of the domain name
"greenproducts.com" during the pendency of litigation would cause Green Products to lose
customers.

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CHAPTER THREE-

DOCTRINE OF INITIAL INTEREST CONFUSION IN GREEN PRODUCT


COMPANY VS. INDEPENDENT CORN BY PRODUCTS CO.

In this case the confusion was regarding Domain name which the defendant has obtained to do
his business online. The name of the website domain of the defendant was
‘www.greenproducts.com’ which was similar to the Trademark of the Plaintiff i.e. ‘Green
products’ which created confusion for the consumers.

Green Products claims that ICBP(defendant) violated Section 43(a) of the Lanham Trademark
Act,8 as well as state laws, when ICBP registered the domain name "greenproducts.com" as one
of its own domain names on the internet.
Green Products moved for a preliminary injunction:
 To enjoin ICBP from using the domain name "greenproducts.com",
 To enjoin ICBP from using the expressions "green products" and "green pet products" as
the whole or part of a trademark, trade name, or domain name, and
 To compel ICBP to convey the *1073 ownership of the domain name
"greenproducts.com" to Green Products.

In response, ICBP agreed to the first and second parts of Green Products' request, but it resisted
the third part.

Court’s opinion:

Court has said that damages in cases related to Domain name following must be proved,
 the probability that Plaintiff will succeed on the merits;
 the threat of irreparable harm;
 the state of the balance between this harm and the injury that granting the injunction will
inflict on other parties; and
 the public interest

When weighing these factors, "no single factor is itself dispositive; in each case all factors must
be considered to determine on balance whether they weigh towards granting the injunction."9

8
15 U.S.C. 1125(a),
9
Calvin Klein, 815 F.2d at 503

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CHAPTER FOUR: ANALYSIS OF DATA PHASE FACTORS

1. Probability that Green Products will succeed on the merits

The probability of success does not require that the party seeking relief prove a greater than fifty
percent likelihood that it will succeed on the merits.10. Instead of a rigid measuring stick, the
Court flexibly weighs the particular circumstances of the case to determine "whether the balance
of equities so favors the movant that justice requires the court to intervene to preserve the status
quo until the merits are determined."11.

An essential element to a trademark infringement action is that the plaintiff must prove that a
defendant's use of a particular name "`creates a likelihood of confusion, deception, or mistake
among an appreciable number of ordinary buyers as to the source or association' between the two
names. Factors relevant to determine the likelihood of confusion or deception are:
 the strength of the trademark
 the similarity between the plaintiff's and defendant's marks;
 the competitive proximity of the parties' products;
 the alleged infringer's intent to confuse the public;
 evidence of any actual confusion; and
 the degree of care reasonably expected of the plaintiff's potential customers.

In order to determine whether the trademark is entitled to protection, the Court examines the first
factor strength of the trademark and classifies the plaintiffs mark as either (1) arbitrary or
fanciful, (2) suggestive, (3) descriptive, or (4) generic.12 An arbitrary or fanciful mark is the
strongest type of mark and is afforded the highest level of protection. At the other end, a generic
term is used by the general public to identify a category of goods, so it does not receive
trademark protection.13. "Suggestive and descriptive marks fall somewhere in between. A
suggestive mark is one that requires some measure of imagination to reach a conclusion about
the nature of the product." In contrast, a descriptive mark "immediately conveys the nature or
function of the product and is entitled to protection only if it has become distinctive by acquiring
a secondary meaning." ("Cozy Warm ENERGY-SAVERS" is descriptive). Here, the Court finds
that Green Products' trademark the name "Green Products" is at least suggestive. The name
"Green Products" requires at least some imagination to connect it with corncob by-products.

10
Dataphase Sys. Inc., 640 F.2d at 113
11
Calvin Klein, 815 F.2d at 503, quoting Dataphase, 640 F.2d at 113.
12
See Cellular Sales, Inc. v. Mackay, 942 F.2d 483, 485 (8th Cir.1991); see also Duluth News-Tribune, 84 F.3d at
1096
13
Duluth News-Tribune, 84 F.3d at 1096, citing Miller Brewing Co. v. G. Heileman Brewing Co., 561 F.2d 75, 79-
81 (7th Cir.1977) (holding "Lite Beer" to be generic).

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*1076 The next factor requires the Court to consider the similarity between the plaintiffs and
defendant's marks. ICBP concedes that its domain name "greenproducts.com" is "undisputedly
similar to the mark Green Products Co."
In essence, ICBP is capitalizing on the strong similarity between Green Products' trademark and
ICBP's domain name to lure customers onto its web page.

Third factor, the competitive proximity of the parties' products,


There is a close competitive proximity between the products that the two companies sell, and
there is also a close competitive proximity between the domain name "greenproducts.com" and
the trademark "Green Products". The domain name "greenproducts.com" identifies the internet
site to those who reach it, "much like a person's name identifies a particular person, or, more
relevant to trademark disputes, a company's name identifies a specific company."14 Because
customers who do not know what a company's domain name is will often guess that the domain
name is *1077 the same as the company's name, a "domain name mirroring a corporate name
may be a valuable corporate asset, as it facilitates communication with a customer base."15

Alternatively, even if this Court were persuaded that it should only compare the alphanumeric
domain names (and not the products that each company sells, nor the similarity between ICBP's
domain name and Green Products' trademark), this Court would still find a close proximity
between the domain name "greenproducts.com" and any of the alternative domain names that
ICBP suggests, such as "green-products.com", "greenproductsco.com", or
"greenproductsco.com." Under either analysis, there is a close competitive proximity, and that
close competitive proximity further increases the opportunity of consumer confusion.16

Fourth, this Court examines whether ICBP intended to cause consumer confusion by creating an
ICBP web site accessed through the domain name "greenproducts.com." No finding as to
whether ICBP's web page is likely to cause consumer confusion between the products of ICBP
and those of Green Products. However, based on the briefs, affidavits, and evidence presented at
the hearing, this Court finds that the use of plaintiff's trademark as defendant's own domain name
is likely to cause consumer confusion as to who owns the site. Just as customers entering a store
that advertises "Green Products" as its store name would be initially confused to find, upon
entering the store, that ICBP actually owned it, so will customers typing the domain name
"greenproducts.com" be initially confused to find that ICBP owns the web site.

14
Cardservice, 950 F. Supp. 737, 42 U.S.P.Q.2d at 1853.
15
MTV Networks, 867 F. Supp. at 203-204 n. 2.
16
See Maritz, 947 F. Supp. at 1341.

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The Court acknowledges that such an interpretation of "consumer confusion" is somewhat
different than that typically used to find consumer confusion in trademark infringement cases.
Typically, the courts examine whether a company intended to confuse consumers into thinking
that its own products were made by a competitor company. 17("Intent on the part of the alleged
infringer to pass off its *1078 goods as the product of another raises an inference of likelihood of
confusion, but intent is not an element of a claim for trademark infringement.").

Here, ICBP did not intend to sell its corn by-products by passing them off as having been made
by Green Products. However, ICBP did intend to pass off its domain name as though it belonged
to Green Products. As a result of the confusion in thinking that Green Products' web site could be
found through the "greenproducts.com" domain name, ICBP could deceptively lure potential
customers onto its own turf, where customers would be told how ICBP is better than Green
Products. This Court finds that such a deceptive use of a competitor's trademark as a way to lure
customers away from the competitor is a kind of consumer confusion.

The fifth factor is incidents of actual confusion. Green Products concedes that because the web
site is not yet operational, there have been no incidents of actual confusion

The last factor is the degree of care reasonably expected of Green Products' potential customers.
To determine this, the Court looks at the "ordinary purchaser, buying under the normally
prevalent conditions of the market and giving the attention such purchasers usually give in
buying that class of goods. In contrast to focusing on how ordinary purchasers buy products,
Green Products and ICBP speculate about the care with which ordinary internet users will search
for Green Products' web site presumably as a means by which to decide whether to buy its
products. Green Products argues that customers "who would like to use Green Products' Internet
services but do not know its domain name are likely to assume that `greenproducts.com' belongs
to Green Products."
This Court has found that Green Products' trademark is not generic, and is at least suggestive.
1079 Thus within the relevant market (i.e., the corncob by-products industry), Green Products'
trademark is well known.

Based on all the evidence before it at this point in the proceedings including the finding that
Green Products is at least a suggestive mark and that within the corncob byproducts industry,
Green Products' name is well known this Court finds that ordinary internet users do not undergo
a highly sophisticated analysis when searching for domain names. Because of the low level of
care used to search for domain names, an ordinary internet user trying to find Green Products'
web site would likely guess that Green Products' domain name was the same as its trademark,
and thus type "greenproducts.com".

17
,SquirtCo v. Seven-Up Co., 628 F.2d 1086, 1091 (8th Cir.1980)

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In summary, despite the fact that neither Green Products nor ICBP can present or refute evidence
of actual consumer confusion because ICBP's web site is not yet operational, this Court also
considers the strength of Green Products' trademark, the strong similarity between Green
Products' trademark and ICBP's domain name "greenproducts.com", the close competitive
proximity, the likelihood that ICBP intended to capitalize on consumer confusion as a strategy to
lure potential customers onto ICBP's web site (even though the actual web site will announce
that Green Products does not own the site), and the degree of care that Green Products' potential
customers will reasonably exercise in browsing the web to find Green Products' site. Based on
this overall balancing, this Court finds a substantial probability that Green Products will prevail
on the merits.

2. Irreparable harm to Green Products

The Court next analyzes the degree of harm, if any, that Green Products would suffer if not
granted a preliminary injunction. The Eighth Circuit has held that a district court can presume
irreparable injury from a finding of probable success on the merits of a Section 43(a) Lanham
Trademark Act case. Sports Design, 871 F. Supp. at 1165, citing Sanborn Mfg., 997 F.2d at 489.
While this Court could thus presume irreparable injury based on its finding of probable success
on the merits, it will also examine the specific circumstances of this case in order to decide
whether allowing ICBP to retain ownership of the domain name "greenproducts.com" during the
pendency of litigation would cause irreparable harm to Green Products.

Although ICBP has consented to putting the domain name "greenproducts.com" on hold until the
final merits are determined, Green Products is concerned that even *1080 though ICBP would
not have an actual web site that could be viewed by typing the domain name
"greenproducts.com", customers could use other functions on the web to discover that ICBP
owns that domain name. As a result, potential or actual customers might mistakenly conclude
that ICBP has purchased the Green Products corporation, or that Green Products has merged
with ICBP. This confusion could result in Green Products losing both customers and revenue
during the pendency of the litigation, and it would be impossible to calculate how much money
or how many customers were lost.

For these reasons, in addition to the fact that the Court believes that Green Products is likely to
succeed on the merits, the Court finds that it would cause Green Products irreparable harm if
ICBP were allowed to retain ownership of the domain name "greenproducts.com" during the
pendency of the litigation.

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3. Balance between this harm and the injury that granting the injunction will inflict on
other parties

If ICBP is compelled to relinquish ownership of the domain name "greenproducts.com" to Green


Products during the pendency of the litigation, ICBP would still be able to launch its own web
site via its registered domain names "icbp.com" or "bestcob.com". Furthermore, the act of
transferring ownership of "greenproducts.com" would not hinder ICBP's ability to launch a web
site that compares its products to those of Green Products: ICBP could still design and
implement a web site that compares the products of ICBP to those of Green Products, and
internet users could access this web site through ICBP's other registered domain names.

While these factors weigh in support of compelling ICBP to transfer ownership of the domain
name, there are also certain factors that weigh against the transfer. This could cause some initial
confusion, and possibly hostility, from customers who might have become accustomed to
accessing Green Products' web site through the "greenproducts.com" domain name.

After weighing the potential harm that ICBP would experience by not being able to use its
competitor's trademark as its own domain name, against the harm Green Products would
experience by not being able to use its own trademark as its domain name, this Court finds that
the harm to Green Products is more extensive and severe than the harm to ICBP. Although ICBP
would experience some harm by transferring ownership of the domain name during the pendency
of litigation, the transfer is not irreversible; if ICBP ultimately prevails on the merits, the Court
will transfer ownership of the domain name back to ICBP. Additionally, even though some
customers who may have become accustomed to finding Green Products' web page through the
"greenproducts.com" domain name may be initially upset when they find that the domain name
"greenproducts.com" has become the domain *1081 name for ICBP's web page (if ICBP prevails
at trial), any harm that ICBP may experience because of Green Products' temporary ownership of
the domain name could be tempered by a carefully designed web page or by hyperlinks to Green
Products' web page. Moreover, given ICBP's goal of distinguishing its products from those of
Green Products, the opportunity for ICBP to establish a comparative advertising web site located
through the "greenproducts.com" domain name could be even more advantageous to ICBP if
Green Products has already attracted customers to the "greenproducts.com" domain name.

For all of the above reasons, and especially considering the fact that the transfer of ownership is
not irreversible because the Court will order the domain name transferred back to ICBP if ICBP
prevails in litigation, the Court finds that the harm to Green Products is more extensive and
severe than the harm to ICBP.

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4. Public interest

In a trademark infringement action, the Court must balance the interest of protecting the public
from confusion and deception against the interest of facilitating a competitive market.

The Court concludes that Green Products has shown a probability that it will succeed on the
merits at trial, that Green Products would suffer irreparable harm if it were not allowed to use its
trademark as its domain name during the pendency of the litigation, that the harm that Green
Products would experience if it cannot own the domain name "greenproducts.com" is more
severe than any harm ICBP would experience in being forced to relinquish it, and that the public
interest is best served by compelling ICBP to relinquish ownership of the domain name
"greenproducts.com" during the pendency of litigation. Within this analysis, the Court has also
considered that the transfer of ownership of the domain *1082 name is not irreversible, so if
ICBP does prevail at trial, the Court can order Green Products to transfer ownership back to
ICBP.

Additionally, the Court finds that Green Products has met a "heavy" burden of proof in
establishing that not only will Green Products probably win at trial, but that the harm that Green
Products would suffer if it were not allowed to use its own trademark as its domain name during
the pendency of the litigation is severe enough to warrant affirmative action to compel ICBP to
transfer ownership of the domain name.

Accordingly, it is ORDERED:

Green Products' motion for a preliminary injunction shall be GRANTED, as follows:


During the pendency of litigation,
(1) ICBP shall not use the domain name "greenproducts.com";
(2) ICBP shall not use the expressions "green products" and "green pet products" as the whole or
part of a trademark, trade name, or domain name; and
(3) ICBP shall transfer the ownership of the domain name "greenproducts.com" to Green
Products.

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CONCLUSION

The initial interest confusion phenomenon is a recent development due to the development of
modern mode of sales and purchase specially internet. The way of purchasing the product is
changed with the passage of time and so is the way of selling a product. The latest development
in the marketing has also led to the vigorous competition between the rival brands. The line
between the fair use of others trademark or trade name and unauthorized use of the same is very
thin. The development of provision of the trademark law has led to the establishment of the new
theories related to the modern use of the trademark. Initial interest confusion doctrine is the
development of the contemporary interpretation of the trademark law. Initial interest confusion
has its origin from the use of other's rights for own benefits. It is related to the time period
wherein the consumer has decided to buy a particular product. While he is searching for his
choice of product he came across other products similar to the one he was searching for and
instead of buying the product of his choice at the first instance he ends up buying another one
due to the reason of his interest developed for the other product due to the method adopted by the
others to promote his product. The use of the others trademark for the promotion of one's own
product would decide whether the method used is infringement or not. Initial interest confusion
is been treated as infringement in various cases around the world.

In this case the confusion was regarding Domain name which the defendant has obtained to do
his business online. The name of the website domain of the defendant was
‘www.greenproducts.com’ which was similar to the Trademark of the Plaintiff i.e. ‘Green
products’ which created confusion for the consumers.
Accordingly, it is ORDERED:
Green Products' motion for a preliminary injunction shall be GRANTED, as follows:
During the pendency of litigation,
(1) ICBP shall not use the domain name "greenproducts.com";
(2) ICBP shall not use the expressions "green products" and "green pet products" as the whole or
part of a trademark, trade name, or domain name; and
(3) ICBP shall transfer the ownership of the domain name "greenproducts.com" to Green
Products.

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BIBLIOGRAPHY

 CYBER LAW LAW OF INFORMATION TECHNOLOGY AND INTERNET: -----


-ANIRUDH RASTOGI, 2014, 1st Edition.
 Cybersquatting VIS-A-VIS Trademark Law:-Mohammad Umar.
 Intellectual Property And Cyberlaw - Harvard Law School Journal.

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