Private Law Theory

ABSTRACT
This Article explores the classic harm theories of trademark infringement that don’t involve sales substitution and argues that courts should recognize their empirical weakness. Despite the expansion of infringement liability based on new theories of such harm, questions about what constitutes trademark harm are now being reexamined at the remedy stage. These changes are positive to the extent that they make courts rethink overly expansive models of trademark confusion.

Tushnet, Rebecca, What’s the Harm of Trademark Infringement? (September 7, 2015). Akron Law Review, volume 49, no 3, 2015.

First posted 2021-10-07 08:00:00