Battle of the consumers in trademark law

Michael Grynberg, Trademark Law as Consumer Conflict: this provocative draft article presented at the Intellectual Property Scholars Conference argues that, given that trademark law sees the trademark owner as a proxy for the interests of confused consumers, it should also view the infringement defendant as a proxy for the interests of nonconfused consumers. This won’t necessarily change many results, especially given the common rationale that a junior user can provide the same benefits to consumers by using some other, nonconfusing mark, but it allows a better articulation of the interests in limiting trademark’s expansion. I liked the piece a lot, especially its powerful critique of initial interest confusion from the consumer’s perspective: “A manufacturer of generic acetaminophen who pays to have his ad displayed as a sponsored link in response to my Google search for ‘Tylenol’ may be a free rider. But I am not.”

One comment: in answering the objection that the defendant’s interests aren’t completely aligned with nonconfused consumers’, Grynberg briefly points out that the flip side is also true: the plaintiff’s interests aren’t completely aligned with confused consumers’. But he doesn’t offer much in the way of explanation. Aside from the anticompetitive purposes for which plaintiffs can employ trademark law, I can think of another important divergence: quality control. Though trademark owners have good reasons to engage in quality control, they don’t forfeit their marks if the marked goods or services vary widely in quality. If they’re leaving the market or making substantial changes in the product, trademark owners can use the marks to deceive consumers, at least for a period of time.

I’m also not sure that the dual-consumer perspective does much to combat post-sale confusion, that doctrine used to condemn knockoffs that are obviously not the original at the point of sale. Grynberg argues that the customer is harder to condemn than the “counterfeiter,” but Susan Scafidi at Counterfeit Chic collects, and contributes to, many narratives about the crassness, misguidedness, and general lack of moral desert of knockoff buyers. The clothing design protection bill Scafidi supports comes out of these anti-knockoff-consumer narratives.

Grynberg’s overall point -- applications of trademark law that help some consumers hurt others – is an important one, and I recommend the piece. I’ve written about this in the First Amendment context, and Lilian BeVier has made similar points about false advertising law, though she argued – in my opinion, wrongly – that trademark law is largely immune to this criticism. See Lilian R. BeVier, Competitor Suits for False Advertising Under §43(a) of the Lanham Act: A Puzzle in the Law of Deception, 89 Va. L. Rev. 1 (1992). (Given developments over the last fifteen years, she might have a different view of trademark law now.)