Trademark law is in the midst of an identity crisis. The prevailing economic account of the law has come under sustained attack by scholars, who have both challenged its descriptive accuracy and blamed it for many of the expansions of trademark rights in recent decades. The likelihood of confusion test – long the nucleus of infringement analysis – has been roundly condemned as indeterminate, incoherent, and normatively empty. No one seems to agree about why we have trademark law and how best to implement it. Scholars have cast about for explanations of how we got here and ideas of how to get out of this mess.
In this article, Bob Bone tries his hand at both diagnosis and cure. His focus is the much-maligned likelihood of confusion standard. The article (1) explains how we ended up with such a curious test for infringement, (2) critiques the standard, finding it internally inconsistent, normatively deficient, and dangerous, and (3) proposes an alternative that Bone views as more consistent with trademark law’s goals. To do all of this, of course, Bone must endorse some version of those goals. It all adds up to an ambitious undertaking, to put it mildly. And while the article inevitably falls short of fulfilling all of these ambitions, it offers some wonderful insights and enriches the conversation about the values that shape our trademark laws.
Intellectual Property JOTWELL
Available at: https://scholarship.law.bu.edu/shorter_works/79