Likelihood of Confusion
The primary objective of this Article is to illustrate the tendency of judges to inappropriately rely on personal intuition and subjective, internalized stereotypes when ruling on trademark disputes. Where jurists perceive consumers as ludicrously easily confused, trademark holders can exploit these views to secure broad trademark "rights," often without offering a shred of evidentiary corroboration concerning such confusion. As a consequence, the proof required to support allegations that a trademark usage creates a likelihood of confusion is potentially lessened in all cases, making trademarks normatively stronger, broader, and ever easier to "protect" for mark holders. Whether consumers realistically benefit from this, in terms of avoiding future confusion, seems highly questionable, especially if they were never actually bewildered or fooled in the first place.
Where judges find defendants' unauthorized uses of a trademark repugnant, such as in the context of ribald parodic sexual allusions, they are especially willing to find likelihood of confusion, often in circumstances where actual confusion, as most lay people understand the term, is improbable enough to render such decisions facially absurd. However, when judges find a plaintiff's marked product deserving of derision or ridicule, they are more likely to endorse the concept that free speech rights can supersede the interests of trademark owners. Judicial biases result in inconsistent approaches to balancing speech rights against trademark interests, which in turn foment uncertainty and unfairness.
Trademark rights should not be strengthened and expanded by reliance on unproven and demonstrably incorrect allegations about the ignorance, poor reasoning, and deficient observational powers of the public, nor should trademark rights be calibrated by how appalling or appealing a judge finds a product or service. If trademark holders are to be broadly privileged by the courts without explicit direction by Congress, then an alternative doctrinal justification to protecting consumers is required, and the resulting protections should adhere fairly consistently to all similarly situated trademarks.
Part II of this Article discusses the foundation and development of pertinent aspects of trademark law and policy, and asserts that the true intended and actual beneficiaries of the Lanham Act are trademark holders, rather than consumers. Part III explains the importance of context in trademark law, especially with regard to assessments of the likelihood of consumer confusion in trademark infringement actions. The use of consumer confusion analysis in trademark dilution cases is also critiqued. In Part IV, the extreme and problematic subjectivity of the likelihood of confusion inquiry is explained and illustrated, as is the tendency of judges to assume that consumers are naive and stupid. Special emphasis is given to the consequences of gender and class stereotyping by judges, with respect to trademark infringement analyses and case outcomes. Part V charts the impact that the substantive defects in trademark jurisprudence identified by the previous portions of the Article have upon freedom of speech when trademark holders object to unauthorized communicative uses of their marks. Finally, Part VI concludes that all consumers should be presumed reasonably prudent, and all trademarks should be treated in a gender and class neutral manner.
San Diego Law Review
Ann Bartow, Likelihood of Confusion, 41 San Diego L. Rev. 721 (2004).