Likelihood of Confusion

Academic Article

Abstract

  • [Excerpt] "Confusion among consumers is the grave iniquity against which trademark laws and jurisprudence are intended to guard. In the guise of preventing confusion, however, trademark holders can interfere with competitors' ability to market competing products, and everyone's ability to mock or criticize trademarked goods or services. Expansive constructions of trademark rights discourage third parties from using trademarks of their own that are even mildly similar to preexisting marks, impede legitimate competition, and dissuade and chill legally permissible free speech uses of trademarks. In the context of trademark litigation, trademark holders aggressively assert that consumers are extremely easy to confuse because judicial acceptance of this assumption facilitates victory in trademark infringement suits. Convincing courts that consumers will be confused is sometimes required, and always useful, for succeeding in trademark dilution actions as well. Trademark law is doctrinally structured to motivate trademark holders to negatively appraise the intelligence, powers of observation, and discernment of consumers."
  • Authors

    Publication Date

  • May 1, 2004
  • Published In

    Start Page

  • 721
  • End Page

  • 818
  • Volume

  • 41
  • Issue

  • May-June