Protecting the common: delineating a public domain in trade mark law

Abstract

In this essay, Professor Austin urges courts to be more critical of the role played by the ordinarily prudent in trademark law. Trademark infringement law's story, which typically justifies trademark rights in terms of protecting consumers from the harms of likely confusion and dilution, does not adequately capture the need for countervailing principles and policies to contribute to the shape of trademark doctrine. The essay argues that recognizing the incapacity of the likelihood of confusion and dilution analyzes to capture the empirical reality of the consumer experience should lead to a greater preparedness to weigh countervailing policies and principles more heavily in the scale. Trademark doctrine provides a useful context in which to explore these ideas. The Supreme Court's approach to fair use in KP Permanent Make-Up, Inc. v. Lasting Impressions I, Inc. risks valorizing consumer confusion in a context in which it should be downplayed. Moreover, the Court's holding risks constraining the analytical space available in trademark law for expression and development of policy concerns other than those that underlie trademark's straightforward story.