Initial Interest Confusion: When Trademark Liability May Arise Before the Point of Sale

August 22, 2026
By: Nathan Hernandez

How Trademark Confusion Can Begin Before Purchase

Most trademark infringement cases involve a familiar allegation: a business uses a name, logo, or other mark in commerce, which causes consumers to mistake its products for those of another company. In the most straightforward cases, that confusion exists at the time a misled consumer purchases the infringing business’s product.

But what happens when the confusion occurs at the beginning stages of a transaction but is eliminated by the time a consumer makes a purchase? Suppose a consumer searches online for a company’s product. A competitor uses that company’s trademark on a website, causing the consumer to visit the competitor’s website instead of the website belonging to the company the consumer originally searched for. Before purchasing anything from the competitor, the consumer learns that the competitor is offering a similar product under a different brand. The consumer nevertheless decides that the substitute is close enough to what she originally wanted and ends up purchasing the competitor’s product.

At the point of sale, the consumer may understand exactly what she is buying. She also may have no confusion as to any potential affiliation between the company she was originally interested in and the competitor she purchased a product from. The competitor, however, arguably obtained the sales opportunity only because it first used another company’s trademark to capture the consumer’s attention.

That bait-and-switch scenario presents what courts call “initial interest confusion.”

What Is Initial Interest Confusion?

Initial interest confusion is a theory of trademark infringement based on confusion that arises during the early stages of a consumer’s purchasing process, even if the confusion is corrected before the transaction is completed. The theory focuses on the commercial value of attracting a potential customer’s attention. A competitor may benefit from another company’s goodwill by using its trademark to generate a website visit, telephone call, email inquiry, or other sales lead. Once the competitor has captured the consumer’s attention, it has a sales opportunity it otherwise would not have received absent the misuse of another’s trademark.

In these scenarios, the harm is not that the consumer purchased the wrong product by mistake. Rather, the harm is that the competitor impermissibly capitalized on the goodwill associated with another’s trademark.

Why Pre-Sale Confusion Matters Under the Law

The Lanham Act—i.e., the federal statutory scheme that most trademark lawsuits are brought under—is not concerned solely with confusion that exists at the precise moment of purchase. Instead, for marks registered with the United States Patent and Trademark Office, 15 U.S.C. § 1114 more broadly prohibits the unauthorized use of a registered mark in connection with the “sale, offering for sale, distribution, or advertising” of goods or services when that use is likely to cause confusion, mistake, or deception.

The Lanham Act’s inclusion of advertising and offers for sale is important. It shows that trademark law governs more than labels appearing on a product at the end of a transaction. Likewise, it reflects the modern commercial reality that advertising, search results, websites, domain names, and communications with prospective customers affect how consumers arrive at purchasing decisions, which has significant implications for the value of a company’s trademarks.

A Real-World Example: Machinery Mounting Solutions, Inc. v. American VULKAN Corporation

The United States District Court for the Middle District of Florida recently considered initial interest confusion in a lawsuit brought by our client, Machinery Mounting Solutions, Inc. (“MMS”). MMS owns the federally registered “ROTACHOCK” trademark for machinery mounting chocks sold in the United States. MMS alleged that the Defendant, American VULKAN Corporation (“AVC”), advertised RotaChock products on its website. MMS further alleged that although AVC did not directly sell RotaChock products on its website, it nonetheless engaged in a bait-and-switch scheme where it captured consumers’ initial interest in RotaChock products through the advertisement of those products on its website, directed consumers to contact it by phone or by filling out a contact form on its website, and then ultimately pitched consumers the similar “Chock Design” line of machinery mounting chock products. In other words, AVC used the goodwill associated with RotaChock to attract potential customers and then steer them toward a competing product.

AVC moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that consumers learned before making a purchase that they were being offered Chock Design products rather than RotaChock products. According to AVC, because any misunderstanding was corrected before the point of sale, MMS had not alleged any confusion that was actionable under the Lanham Act.

The Court ultimately denied AVC’s motion. Although no binding authority in the Eleventh Circuit squarely addressed whether initial interest confusion is actionable under the Lanham Act, the Court surveyed the landscape of persuasive authority and noted that the overwhelming majority of United States Courts of Appeals that have addressed initial interest confusion have found it actionable. Given that, and because the Court noted that Eleventh Circuit precedent did not foreclose MMS’s theory of liability, the Court held that MMS successfully alleged a plausible trademark infringement claim under the Lanham Act.

Practical Takeaways from the Machinery Mounting Solutions Decision

The Machinery Mounting Solutions decision illustrates that trademark infringement cases are primarily concerned with whether a competitor’s use of another’s trademark was likely to confuse consumers in a commercially meaningful way. A competitor that attracts consumers by using another’s trademark may receive a valuable business opportunity by improperly capitalizing on the goodwill that belongs exclusively to the trademark owner. Ultimately, the trademark-infringement inquiry includes how a competitor initially obtained a consumer’s attention—not simply what the consumer understood at the moment of purchase.

Considering all this, trademark owners should look beyond their understanding of competitors’ actual sales when investigating possible trademark infringement. Infringement may appear earlier in competitors’ purchasing processes, and evidence demonstrating it can include website screenshots, archived webpages, search-engine results, advertisements, contact forms, customer inquiries, sales communications, referral records, website analytics, and communications from consumers who initially sought the trademark owner’s product.

Davis, Burch & Abrams represents businesses in trademark infringement and other intellectual property disputes. If you own a trademark—whether federally registered or not—and believe your competitor has wrongfully used your trademark at any point during its transactions with consumers, please reach out to the author, Nathan Hernandez, at nathan.hernandez@davisba.com.