ABSTRACT
Trademark law is conventionally justified as a tool to protect a consumer’s expectation that a mark represents the source of a product. This goal is achieved mainly by preventing a dishonest competitor from confusing consumers into purchasing a product from a source other than the mark owner. However, trademark law ignores untruthful signaling by the mark owner. This Article explains the harms of allowing producers to mislead their consumers and proposes solutions internal to the trademark system as complementary to existing legal frameworks. It uses three case studies to demonstrate how trademark law permits, and at times incentivizes, untruths by mark owners. First, through masking, the trademark system allows mark owners to maintain their rights while changing the products the marks represent. Second, through zombie marks, abandoned symbols with residual goodwill are resurrected by a firm with no association with the original entity. And third, in nonsense marks, strings of letters and numbers are used to gain the benefits of registration without meaningfully communicating product origin to consumers. These misuse cases threaten to destroy consumers’ reliance on trademarks, ultimately resulting in a dysfunctional trademark system. As a solution, this Article proposes a heightened truthfulness requirement, achieved by recalibrating currently narrow doctrines, including the ‘failure to function as a mark’ rule, the abandonment doctrine, the duty of candor, and consumer standing.
Gebru, Aman, Truthmarks (April 7, 2026), American University Law Review (Forthcoming 2027).
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