Initial Interest Confusion

Friendly's“Oh, look, there’s a Friendly’s! Let’s go there. I didn’t know they had those in Florida,” I said to my son as we walked along looking for a place to eat.

Freddy's B&WAs we got closer, I saw that it wasn’t a Friendly’s but a Freddy’s. The font, the color (both use the same shade of red) and the overall shape of the word made me think it was a different restaurant than it actually was.

This is a perfect example of what trademark attorneys call “initial interest confusion.”

My “initial interest” in eating there was the result of my “confusion” about what company was about to make my burger. I realized I was mistaken before I went in, but I was initially confused.

Some courts think “initial interest confusion” is enough harm in certain situations to be considered trademark infringement. It’s easy to see how this feels wrong but it’s hard to nail down.

  • Would this FREDDY’s restaurant have gotten my business if I hadn’t started out thinking it was a FRIENDLY’S?
  • How does this harm Friendly’s?
  • Does it matter whether or not there’s a FRIENDLY’S nearby? (They mostly don’t overlap geographically, but that’s changing. Orlando, Florida has both a FRIENDLY’s and a FREDDY’S.)
  • Assuming Friendly’s trademark rights beat out Freddy’s trademark rights[1], do you think Freddy’s is infringing Friendly’s rights?
  • Should Friendly’s should go after Freddy’s?

These are hard questions with complicated answers, which makes it fun to think about, but not if you’re Friendly’s or Freddy’s.

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[1] Friendly’s first registered FRIENDLY’S in that font for restaurant services in 1990. It had been using that trademark since 1967.

Freddy’s first registered FREDDY’S in their font for restaurant services in 2011 with a date of first use in 2009.

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