The jury gets to decided if a confused consumer is sophisticated. SELECT COMFORT v. DIRES

The first person to use a trademark to brand products is referred to as the senior user, subsequent users of the same trademark are known as junior users. If a junior trademark user brands products in a way that causes consumers to confuse the junior user’s products with the senior trademark user’s products, that can be considered trademark infringement. A trademark owner who feels that their trademark is being infringed upon can attempt to stop trademark infringement with an injunction and get monetary damages for trademark infringement which has occurred.

Many different factors lead up to a consumer’s decision to make a purchase. The time it takes a consumer to complete a purchase may take minutes or months. Historically, trademark infringement focused on point of sale consumer confusion, meaning the point at which a consumer makes a purchase. For instance when a customer buys a pair of shoes thinking the shoes were made by Brand A and the consumer later discovers the shoes are poor quality imitations made by Brand B.

As trademark law has matured the concept of liability for consumer confusion has expanded to events that happen before the sale (pre-sale) and events that happen after the sale (post-sale). Post-sale consumer confusion is a theory of liability based on a third party observing a infringing product in public. For example, if a consumer knowingly purchases an imitation pair of shoes and wears them in public, other people looking at the shoes might be confused into thinking the shoes are genuine.

Pre-sale consumer confusion is when a trademark a trademark is used to lure a consumer in, but at the point of sale consumer confusion does not occur. This legal theory is also known as initial interest confusion. For instance if a store advertises Brand A but when a consumer enters the store only Brand B is available for sale. The consumer knows they purchased Brand B, but confusion about the availability of Brand A is what got the consumer into the store. As online advertising and consumer shopping on the internet has grown, so has the number of cases that touch on pre-sale confusion.

SELECT COMFORT CORP. v. DIRES LLC, 19-1077 (8th Cir 2021) is an example of a case where initial interest confusion was at the heart of the trademark infringement case.

Plaintiffs and Defendants sell competing adjustable air mattresses. Plaintiffs’ registered trademarks include “SLEEP NUMBER”, “WHAT’S YOUR SLEEP NUMBER”, “SELECT COMFORT”, and “COMFORTAIRE”. Plaintiffs allege Defendants used trademarks similar to Plaintiffs’ trademark to sell products on the internet. Plaintiffs also alleged that when a consumer called Defendant to place an order the consumer’s confusion was not dispelled. The district court rejected as a matter of law an infringement theory based on presale or initial-interest confusion. At trial the jury was instructed that infringement liability depended on a showing of a likelihood of confusion at the time of purchase. Both sides appealed the jury’s verdict to the Court of Appeals for the Eighth Circuit.

The Eighth Circuit concluded the district court erred by finding as a matter of law that the relevant consumers were sophisticated and that a theory of initial-interest confusion could not apply. The relevant consumers were found to be sophisticated by the district court because mattresses are expensive. In its opinion the Eighth Circuit reviewed prior cases that turned on the mental state of consumers and found that the sophistication of a consumer is a question of fact for the jury. A jury question existed as to the issue of consumer sophistication and summary judgment on the theory of initial-interest confusion was error. Based on these conclusions the Eighth Circuit reversed and remanded the case for further proceedings.

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