ABSTRACT
When it comes to the possibility of confusion test, the industrial era has a coherence issue. The development of modern multifactor tests, which resulted from judicial compromise, is examined in this article. It erroneously combines the empirical measure of likelihood of confusion with normative evaluations of the extent of harm and the defendant’s moral responsibility. This article charts the development, emphasizing how judicial subjectivity and bias have resulted from the underlying ambiguity. Free speech and trademark protection are at odds as a result of this unrestricted doctrinal expansion into the areas of post-sale uncertainty. The applicability of the idea in the context of the dynamic metaverse is examined in this essay. It contends that the emergence of immersive virtual reality environments, decentralized systems, and digital assets (NFTs) renders the conventional approach to jurisdiction, market proximity, and consumer sophistication obsolete. By enforcing real-world standards on virtual commodities, the Metaverse’s unique technological environment reveals doctrinal faults and endangers freedom of expression and creativity. A paradigm shift in the definition of infringement is proposed in the paper’s conclusion. After a purely empirical assessment of the risk of confusion, it recommends that the study be split into two separate analyses: a transparent examination of trademark-related harm and moral blameworthiness.
Kaur, Arshpreet, The Likelihood of Confusion: An Enduring Trademark Doctrine Under Digital Strain (January 20, 2026).
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