The Constructive Role of Confusion in Trademark

This Article argues that consumer confusion plays a pervasive and important role in our trademark system. This argument directly challenges well-established orthodoxy. Numerous Supreme Court opinions and leading academics take the position that trademark law exists to reduce consumer confusion as much as possible. Indeed, courts generally justify aggressive creation and enforcement of trademark rights on the ground that these rights reduce consumer confusion or its economic equivalent, consumer search costs. Unfortunately, this construction of trademark law rests on a fundamental misunderstanding about how consumer confusion, the trademark system, and the operation of markets relate to one another. In particular, trademark orthodoxy considers consumer confusion always harmful. Aggressive elimination of even modest confusion therefore improves our trademark system and, by extension, the operation of markets because such modest confusion hinders the ability of consumers to find the goods they want. Two observations expose the inaccuracy of this orthodoxy. First, trademark law frequently accepts, creates, and even promotes the very sort of modest confusion that trademark orthodoxy despises. The ubiquitous presence of this confusion suggests that consumers should find their preferences seriously disrupted, but consumers generally find the goods they prefer without undue difficulty. Accordingly, it appears that modest confusion does not disrupt markets as badly as trademark orthodoxy states. Second, and more importantly, there is ample reason to think that low-level, modest confusion actually helps consumers avoid confusion by teaching them to identify and distinguish trademarks more effectively. Indeed, consumer research suggests that exposure to confusion spurs consumers to develop and implement cognitive strategies that avoid confusion and that consumers become more and more adept at using these strategies over time. This shows that trademark theory should change to embrace, and even encourage, low levels of modest confusion in order to improve consumer abilities and, by extension, the operation of the trademark system itself