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The Initial Interest Confusion Test recognises that trademark infringement can occur at the moment of initial consumer attention, not just at the point of purchase — making even transient online confusion actionable, though courts are beginning to recalibrate the doctrine for the digitally-empowered modern consumer.
When an unauthorised use of a mark diverts consumer attention even before the point of purchase, it causes commercial injury to the brand owner. The Initial Interest Confusion Test holds that infringement occurs if the use creates a momentary or initial confusion drawing an internet user to the defendant’s website or offering. The defendant is deemed to have obtained an unwarranted commercial benefit by capitalising on the trademark owner’s goodwill, irrespective of whether the consumer ultimately recognises the absence of any association before transacting. This initial diversion of attention constitutes actionable confusion even where the consumer subsequently realises the absence of any connection.
In Hotels.Com LP v. Barath M L and Ors. (Delhi High Court, September 26, 2025), the Court granted a permanent injunction finding that the defendant’s domain created initial interest confusion by misleading users searching for the plaintiff’s website. The Court drew on Under Armour Inc. v. Anish Agarwal and Ors. (Delhi High Court, May 23, 2025), which held that merely attracting the initial attention of consumers of a well-known brand satisfies the threshold under Section 29 of the Trade Marks Act, 1999. In People for the Ethical Treatment of Animals v. Doughney, the use of peta.org for an unrelated website was held actionable because the misleading association arose at the domain name level itself, attracting users under a false impression of affiliation. In K. Harris & Co. v. Kassel, publishing negative content about a competitor on a page designed to rank in searches for that competitor was found to likely cause initial interest confusion.
Courts are beginning to recalibrate the test for contemporary consumer behaviour. In Mountain Valley Springs India Pvt. Ltd. v. Baby Forest Ayurveda Pvt. Ltd. (2024 SCC OnLine Del 3665), the Delhi High Court held that the traditional test may not strictly apply as the modern consumer is digitally empowered, better informed, and capable of verifying brand identity using search engines, product comparisons, and AI tools. Purchasing decisions today are rarely based on a single point of contact with a mark. Treating momentary confusion as legally sufficient risk may overstate consumer vulnerability and extend trademark protection beyond its intended purpose.
The Initial Interest Confusion Test remains a significant doctrinal tool recognising that commercial harm from misleading initial diversion can be as serious as confusion at the point of purchase. As consumer behaviour evolves, a more contextual and evidence-based analysis is required to ensure the doctrine continues to serve its foundational purpose without over-protecting against competition in the digital marketplace.
