Domain Names and Likelihood of Confusion

In a recently decided case in the US, a District Court ruled that the effortless nature web-surfing makes it easier for a consumer to be confused about a site’s ownership (thereby resulting in trademark infringement).  The Court said:
Several courts have noted that the quick and effortless nature of “surfing” the Internet makes it unlikely that consumers can avoid confusion through the exercise of due care:
In the internet context, in particular, entering a website takes little effort - usually one click from a linked site or a search engine’s list; thus, Web surfers are more likely to be confused as to the ownership of a web site than traditional patrons of a brick-and-mortar store would be of a store’s ownership.
As a result, “ordinary Internet users do not undergo a highly sophisticated analysis when searching for domain names.” The Court fails to consider a fundamental truth about the Web — that it is a platform riding on a sea of information.  Users can easily verify the sponsorship of a site by relying on a slew search engines.  Information from searches leads to more information  (like urban legend sites or blogs) that can help the user confirm a site’s authenticity.  The point is that in brick-and-mortar stores where the consumer is misled as to its sponsorship (like walking into a Mang Donald’s in Pasig), the consumer would have no easy way to find the authentic store.  That’s just not true on the Web. 

Customer confusion is essentially an information problem — the customer can’t confirm if the store they’re entering or product  they’re holding — is really the store or product that they relate to a particular brand.  But a web surfer isn’t similarly situated — he can easily go back on the Web and get  the right information.  At best, the confusion will last only for a few seconds — not long enough to constitute trademark infringement.

Until the courts understand this, the bar for trademark infringement for domain names will remain unreasonably low.  At least, until users (and judges) become more sophisticated.