Targeting your competitor’s brand name – shady practice or just business?

Andrei Mincov's commentary on the original article
As much as the practice of using a competitor's brand to advertise your own is shady or in some jurisdictions even illegal from the trademark infringement perspective, to say that it never works is misleading.

In fact, the reason this practice is shady and illegal is precisely because, in many cases, it can be very effective since often, people who are looking for something from a specific brand are also open to learning about alternatives.

There is a legal theory called "Initial interest confusion" doctrine that is designed to prevent such misleading advertising. The idea is that even when the customer KNOWS that the ad does not come from the trademark owner whose brand was used as a keyword, the consumer ends up CHECKING OUT what they would not have checked out unless they were looking for the hijacked brand.

nUsually, in order to win a trademark infringement case, the trademark owner needs to prove that customers are likely to be confused into believing that the competitor's products and services and those of the trademark owner's come from the same source. This is, of course, problematic, when those who click on the ad know, without any doubt, that the competitor's website is not linked with the brand they were looking for. The "Initial interest confusion" doctrine allows you to sue for trademark infringement even no confusion exists AFTER a visitor lands on the competitor's website.
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