What does the concept of eternal recurrence and the trademark infringement doctrine of initial interest confusion have in common?   There are only two possible answers to this question:  everything or nothing.  Nothing if the concept of eternal recurrence is wrong.  Everything if eternal recurrence is correct.

Friedrich Nietzsche wrote this of eternal recurrence:

“What, if some day or night a demon were to steal after you into your loneliest loneliness and say to you: “This life as you now live it and have lived it, you will have to live once more and innumerable times more; and there will be nothing new in it, but every pain and every joy and every thought and sigh and everything unutterably small or great in your life will have to return to you, all in the same succession and sequence—even this spider and this moonlight between the trees, and even this moment and I myself. The eternal hourglass of existence is turned upside down again and again, and you with it, speck of dust!”

Would you not throw yourself down and gnash your teeth and curse the demon who spoke thus? Or have you once experienced a tremendous moment when you would have answered him: “You are a god and never have I heard anything more divine.” If this thought gained possession of you, it would change you as you are or perhaps crush you. The question in each and every thing, “Do you desire this once more and innumerable times more?” would lie upon your actions as the greatest weight. Or how well disposed would you have to become to yourself and to life to crave nothing more fervently than this ultimate eternal confirmation and seal?”

Friedrich Nietzsche wrote these words in the Gay Science over 100 years ago.  Eternal recurrence is the idea that every event in the universe necessarily repeats itself exactly an infinite number of times. With respect to individuals, this means that our life has already occurred and will recur exactly the same way, without deviance, over and over and over again. Nietzsche states that eternal recurrence necessarily follows from the theories of eternal time and the conservation of energy and matter.  That is, if time is infinite but the physical world is finite, then there will be a limited number of combinations of the physical world that must repeat endlessly.

He “titled” this aphorism das schwerste Gewicht which means either the greatest stress, greatest weight or greatest burden depending on the translation.   Would that appellate judges in America understand the significance of at least the possibility that eternal recurrence (or some simulacra thereof) exists. According to doctrine of eternal recurrence every second of our lives recurs an infinite amount of times.   In the context of jurisprudence this is particularly profound because of the American legal system’s quite proper adherence to the doctrine of stare decicis (Latin for “let the decision stand”) in which the courts have an institutional prejudice to not overturn prior decisions.    When put into the context of eternal recurrence that means that decisions are eternally left to “stand”.  This should be, in the words of the Czechoslovakian novelist Milan Kunderas, a “terrify prospect”.

In the world of eternal recurrence the weight of unbearable responsibility lies heavy on every move we make.   If this is the case for the mass of men who lead inconsequential lives, how much more so is it for those among us who shape the path of the law?  The answer is infinitely more, and thus das schwerste Gewicht should be recognized for its singular importance.

And so it is that the doctrine of initial interest confusion in trademark law is all the more perplexing given das schwerste Gewicht. The test for trademark infringement typically focuses on the likelihood of confusion at the point of sale, i.e., the likelihood that a consumer will be misled by the unauthorized use of a trademark and purchase goods or services sold by someone other than the trademark owner.  By contrast, initial interest confusion, although dispelled prior to the point of sale, allows a competitor to get its foot in the door with consumers seeking to purchase goods and services sold by both the competitor and the trademark owner.  So by way of example:

a consumer sitting at his desktop one evening types in the keywords “Smith’s Sauerkraut” into his Google search bar. Google returns multiple different “organic” results—the top result being the official Smith’s Saurerkraut site.   But the top paid advertisement reads “Smith’s Saurkerkraut” but has text that speaks of food generally and it links to wilhelmsdogs.com   The consumer hits the link to wilhelmsdog.com.  But he then quickly realizes that he is not at Smith’s Saurkraut and hits the back button whereupon he sees the top organic listing for Smith’s Sauerkraut and follows the link.  20 seconds elapsed from the time the consumer typed the keywords in untill the time he found his way to the Smith’s Sauerkraut site.

A layman looking at this scenario would be hard-pressed to say that Smith’s Saurkraut was in anyway harmed.  But unfortunately the American courts have discovered a disease where none existed and then invented a cure for the non-existent disease.  And so now we have the doctrine of initial interest confusion.  In the example above, it was that 20 second time period where there was the possibility that some confusion existed that the courts now say is actionable.  The fact that no confusion can ever be proven is irrelevant to the doctrine.   Nor is it relevant that the consumer actually found what he was looking for—and did so in less than 20 seconds.  All that matters in analyzing the case under the initial interest confusion doctrine is that there was some possibility that there was momentary confusion.

The problems with this reasoning are manifold.   First and foremost, there is the evidentiary problem as to how you could prove that confusion occurred and who should have the burden of proof.  Unfortunately, some courts have resolved both of these favorably to the Plaintiff.   But on another level you have the issue of factual irrelevancy.   If the consumer found what he was looking for and did so alacriously it is irrelevant that he might have been momentarly confused.   Just as it is irrelevant to most every person alive today that in the 7^th century there might have been a great and bloody battle against two African tribal kingdoms.

And so we have now a doctrine that will be repeated endlessly throughout time based on a possibility that some slight confusion might have occurred.   There is the saying that “hard facts make bad law”.   There are no hard facts in the cases where the doctrine of initial interest confusion is applied.   There is only bad law when it gets applied.   Traditional trademark infringement analysis is well-suited to address any and all actual wrongs.   Eternity is far too long to have to spend with bad law made without even the slight concern for das schwerste Gewicht.

Last summer the Georgia Supreme Court in Atlanta Bread Co. v. Lupton-Smith held that covenants not to work for a competitor or perform competitive acts during the course of employment were subject to strict scrutiny. In Georgia, application of a strict scrutiny review makes it considerably more difficult for an in-term covenant to be enforced by a Georgia court.

The Court stated : “Appellant contends that the clause at issue is a “loyalty provision” and not a restrictive covenant such that it is not subject to being scrutinized for its reasonableness as to time, territory and scope. We disagree. A plain reading of the clause shows that it prohibits the franchisee from engaging in a certain type of business during the term of the parties’ agreement and, thus, it is a partial restraint of trade designed to lessen competition. Such restraints, no matter the nomenclature assigned to them, are disfavored in this state as a matter of public policy…. When such restraints are found in franchise or distributorship agreements, our jurisprudence has held time and again that these restraints are subject to strict scrutiny, receiving the same treatment as non-competition covenants found in employment contracts… “A non-competition covenant entered into in connection with a franchise or employment contract is enforceable, but only where it is strictly limited in time and territorial effect and is otherwise reasonable considering the business interest of [the party] sought to be protected and the effect on the franchisee.” [internal citation omitted]. 285 Ga. 587 (2009)

According to data supplied by FranchiseOpportunities.com and FranchiseSolutions.com Georgia ranks as the 5th most popular state for prospective franchisees. Consequently, given the importance of Georgia to the franchising world this case is particularly important for the entire franchise community and the reason why the IFA filed an amicus briefs in the case. This ruling is perhaps of even greater importance and scope to the franchise community than it might appear on its face because it would also apply to the in-term non-compete agreements that many franchisees have in place with their employees. Unless in-term provision contain precise limitations on geography and scope of activity they will be invalidated. And, since Georgia courts “blue-pencil” employment agreements, the presence of an unenforceable in-term covenant in any employment agreement in any business will invalidate any other non-compete or non-solicitation covenant contained in the agreement.

Thus the franchisee must also be cognizant of any limitations it attempts to place on its employees in its employee agreements. So what might appear at first glance to be a slam-dunk ruling in favor of the franchisees might at some later date be used franchisees by their own employees.