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Journal of Technology Law & Policy

Document Type

Note

Abstract

As a unique form of intellectual property, trademarks serve two primary functions. First, trademarks exist to protect consumer expectations about products and services. A trademark should help consumers to accurately predict the quality of the product they are purchasing regardless of the actual source. Second, trademarks allow owners of businesses to accumulate goodwill in their products. Trademarks can accumulate value for their owner, and are often sold, licensed, and assigned for millions of dollars. In many trademarks claims, therefore, courts are forced to balance the owner’s rights in the mark and the consumer’s interests in the mark. In traditional trademark infringement, or forward confusion, a junior user attempts to use a well-known senior user’s mark to sell its product. In this context, enforcement of the trademark is beneficial to the consuming public, because it prevents marketplace confusion which would increase search costs and harm the trademark owner because of his ownership interest in the mark. However, in reverse confusion, the interests of trademark owners and consumers are often in tension.

In reverse confusion cases, a junior user (defendant) adopts a mark already in use by the senior user (plaintiff). However, the junior user dwarfs the senior user through advertising and other expenditures used to promote the mark. While the senior user has a “property” interest in protecting the mark, the public may benefit more from the junior user’s adoption of the mark because they only identify the mark with the junior user and are not confused by the dual used of the mark. That conflict is the focus of this Note. This Note argues that the doctrine of reverse confusion should be limited to cases in which society does not benefit from the junior user’s use of the mark enough to outweigh the harm to the senior user’s property rights.

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