Liability for "invisible" use of trade marks on the internet

This article critiques the proposal to introduce a US style doctrine of initial interest confusion (IIC) into Australian trade mark law. Specifically, it rejects the proposal put forward by Mahmoud Mando in a previous issue of this journal that an IIC doctrine is needed to proscribe unseen uses of a plaintiff's mark on the internet. It argues that the IIC doctrine is both doctrinally and normatively inconsistent with Australian trade mark law. In making this argument, this article provides an overview of current internet search technology and reviews Australian case law relating to unseen trade marks under s 120 of the Trade Marks Act 1995 (Cth). It concludes by arguing that the creation or adoption of new laws for invisible trade marks represents a form of reactionary "cyber-exceptionalism", that can lead to the unnecessary distortion of robust legal principles.