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.
Likelihood of Confusion,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol41/iss2/6