When being confused is not confusion: are you confused?

As all Kat readers know, consumer confusion (and its wonderful legal extension, “likelihood of confusion”), is the bedrock of classic trade mark law. Wearing his consumer hat, however, this Kat is hard-pressed to remember the last time that he actually was confused about the source of a product or service solely because of the similarity of name. Against that backdrop, this Kat thought that the last place that he would encounter an instance of actual confusion would be at the Annual Meeting of the International Trademark Association, where trade mark sensibilities are meant to be especially acute. In particular, he could not imagine an instance of actual confusion regarding the names of hotels. And yet, it happened… and then it did not happen. Confused about the confusion? Read on.

It happens that one of the so-called convention hotels in San Diego was the Hotel Solamar. This Kat dutifully carried with him a map of the convention hotels, since many convention activities took place at these various hotels. And so it was when he bounded out of his hotel room early one morning to attend a meeting of outside counsel of a particular client, which he was sure was to take place at the Hotel Solamar (having quickly checked his schedule the night before). He confidently entered the Hotel Solamar, but to his frustration, he could not find a notice of the meeting at the hotel. Finally admitting defeat, he sheepishly approached the front desk for clarification, which was quick to come. “Sir, you are the wrong hotel. You don’t want the Hotel Solamar, you want the Hotel Palomar” (which is about a 10-minute walk away).

What I had obviously done in checking the name of the hotel the evening before was to focus on the “mar” part of the name and wrongly assume that the hotel in question was a convention hotel. The only hotel that met that description was the Hotel Solamar. Having now understood the error of my ways, I then continued: “How often does it happen that a person will confuse one hotel for the other”? The answer, “it happens sometimes, but we don’t really care, since both the Hotel Solamar and the Hotel Palomar belong to the same group, the Kimpton Hotels.” So there it was—as a consumer I had been confused, but from the point of view of the trade mark owner, it would appear that the confusion did not matter. In the famous words of a well-known US basketball commentator, “no harm, no foul”, meaning that since there was no damage, the act complained-of does not amount to a legal claim. It was consumer confusion engendered by the very same hotel owner. What can we make of this?

First, having regard to the circumstances giving rise to my confusion (irrespective of the common ownership of the two hotels), could it be said that I was at least partially responsible for my own confusion? After all, one would think that a consumer typically spends more time fixating on the name of a hotel as compared, e.g., with buying peanut butter at the local supermarket, such that the likelihood of actually being confused by a hotel name should be unlikely. A set of unusual circumstances conspired against me—wrongly assuming the sought-after hotel was a convention hotel and rechecking the information the night before in the face of too little sleep and too much mental multitasking. Under such circumstances, could I, as the confused consumer, be deemed culpable for my own mistake, akin to tortious contributory negligence? When does the conduct of the consumer exculpate a trade mark owner from a claim of infringement, even where there is an instance of actual confusion as a matter of fact?

Secondly, this Kat wonders why it is that the Kimpton Hotel group is prepared to tolerate the possibility that confusion may occur with respect to the names of the respective hotels. After all, what happened was an instance of initial interest confusion (which was later corrected). At least under United States jurisprudence, initial interest confusion has been found to be a basis for liability based on infringement. Here, however, there is no reason to assert a claim of infringement—“no harm, no foul” with respect to the trade mark owner, but harm to me as a consumer in the form of time lost and energy misspent, not to mention a sense of personal embarrassment.

Professor James Gibson of the University of Richmond delivered an academic paper as part of the Scholarship Symposium at the INTA Annual Meeting, “Trademark Law as an Agency Problem”, where he discussed the recognized problem that the trade mark interests of the trade mark owner and consumer are not always in alignment. This Kat’s experience in confusing the Hotel Solamar with the Hotel Palomar is an excellent case in point. This Kat is skeptical that the law is able to micro-manage these misalignments, as Professor Gibson suggested, even though they may impose frictions, and even costs, to the various trade mark actors. After all, costs/benefits are inherently part of all intellectual property rights.

Katnote from Jeremy: at the INTA Meeting some years ago in San Antonio, Texas, I was confused between the San Antonio Marriott Rivercenter and the San Antonio Marriott Riverwalk.  One's eye has to travel virtually the full length of the alphabet before getting to the bit that's different.