A Handbook of Contemporary Research
Edited by Graeme B. Dinwoodie and Mark D. Janis
Chapter 15: Online word of mouth and its implications for trademark law
14 Tolerating confusion about confusion: trademark policies and fair use Graeme W. Austin* I. Introduction A straightforward explanation of trademark law might go something like this: trademark law prohibits unauthorized uses of trademarks to protect against the likelihood1 that “ordinarily prudent” consumers will be confused about the source of products and services by misleading uses of others’ trademarks.2 Consequently, trademark law protects firms against the misappropriation of the goodwill that their trademarks represent.3 Protection of trademarks encour* J. Byron McCormick Professor of Law, James E. Rogers College of Law, University of Arizona. © Graeme Austin 2006. Thanks to Graeme Dinwoodie, Mark Janis, Bryan Patchett, Susy Frankel, Ellen Bublick, Robert Burrell and Paul Myburgh for their insightful comments on an earlier draft of this chapter. A version of this chapter also appears as an essay in 50 ARIZONA L. REV. (2008). 1 See, e.g., Lois Sportswear, U.S.A., Inc. v Levi Strauss & Co., 799 F.2d 867, 875 (2d Cir. 1986) (actual confusion need not be shown). 2 As Professor Robert Bone explains, moral arguments provide another set of explanations for protecting trademark rights, including prohibiting “lying or intentional deception” and “unjust enrichment,” and protecting “consumer autonomy.” Robert G. Bone, Enforcement Costs and Trademark Puzzles, 90 VA. L. REV 2099, 2105–08 (2004) [hereinafter Bone, Enforcement Costs] (discussing the “standard policy arguments” supporting protecting trademark rights). Whereas moral concerns once featured more prominently in Anglo-American trademark and unfair competition doctrine (see, e.g., Thomson v Winchester, 36 Mass. 214, 217 (1837) (showing of “fraud” required...
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