Paul J. Krause


This comment addresses the concept of initial interest confusion in trade dress law and examines several different courts' approaches to the doctrine. Through the discussion, it becomes evident that while being careful to avoid bypassing an analysis of the likelihood of confusion factors, courts should also use the doctrine to determine confusion of potential purchasers. Failing to account for certain factors, such as the sophistication of the relevant consumer group, may allow courts to skew the likelihood of confusion factors in an initial interest confusion analysis. In sum, the author argues that courts should conduct a thorough analysis of likelihood of consumer confusion by applying the accepted likelihood of confusion factors. Courts should also eliminate inappropriate use if the ultimate question in trade dress initial interest confusion analysis. Further, courts should insist on a survey universe of the appropriate target market.