Tenth Circuit Kills the Initial Interest Confusion Doctrine–1-800 Contacts v. Lens.com

24 10 2013

By Eric Goldman

1-800 Contacts, Inc. v. Lens.com, Inc., 2013 WL 3665627 (10th Cir. July 16, 2013)

1-800 Contact has spent enormous amounts on legal fees—at least $650k as of 2010–pursuing Lens.com for competitive keyword ads that had generated $20 in profit for Lens.com (no, that’s not a typo) and, at maximum, a few tens of thousands of dollars in revenue for Lens.com affiliates. All of this litigation is predicated on the initial interest confusion doctrine, an overly amorphous doctrine that no one can define, no one can find any academic support for, and has been a loser in court for many years. To top it off, 1-800 Contacts had hypocritically engaged in competitive keyword advertising itself. Glass house and stones, etc.

After 6 years in court, the case isn’t over yet. This week, the Tenth Circuit affirmed most of the district court’s opinion and emphatically rejected most of 1-800 Contacts’ lawsuit against Lens.com for the competitive keyword advertising it and its affiliates did. However, a small issue got remanded for a jury trial, so the parties will get the pleasure of wasting many tens of thousands of dollars more to conduct the jury trial unless they can finally find a way to settle. Hooray for litigation that create massive deadweight social losses!


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