Private Law Theory

ABSTRACT
Trademark law should change its vision of the ideal consumer. Existing doctrine assesses trademark infringement by asking whether the defendant’s conduct is likely to confuse a ‘reasonably prudent purchaser’. Although the reasonably prudent purchaser sounds a lot like tort law’s reasonable person, they often differ in practice. In tort, reasonableness is a normative duty. In trademark law, prudence is more often used to describe consumer perception. This divergence is perhaps unsurprising given that the trademark cause of action is not directed against consumers, but rather those who sell to (and potentially mislead) them. On this telling, a careless consumer hurts no one but themself. Seen this way, the judicial conception of the rational consumer has little use for the language of duty.

This is a mistake. Absolving consumers of a basic expectation to look after their own interests frees the judicial imagination to posit foolish, easily confused consumers. Protecting such careless – potentially hypothetical – consumers imposes costs on their more attentive, real-life counterparts. Successful trademark claims deprive non-confused consumers of the benefits of a defendant’s activity. Easily confused consumers therefore cause harm. Trademark law should respond by withholding or limiting protection to them, just as tort law curtails relief for negligent victims.

What then would it mean to take ordinary care seriously in trademark law? The answer lies in expecting a standard of competence in navigating the modern economy – of bringing to bear the attention one would expect from those seeking to accomplish their goals. By adopting such a ‘skillful consumer’ standard, the reasonable consumer of trademark would look more like the reasonable person of tort. In addition to promoting the overall coherence of the American legal system, harmonizing the ordinary consumer with tort law’s reasonable person would promote aggregate consumer welfare by protecting ordinarily careful consumers from their too easily confused peers.

Grynberg, Michael, The Consumer’s Duty of Care in Trademark Law (November 26, 2021) in Research Handbook on Trademark Law Reform (Graeme B Dinwoodie and Mark D Janis, eds, Edward Elgar 2021).