Trademark Law and Consumer Constraints

Trademark law’s focus is on the consumer. Both the trademark literature and the marketing literature, however, tend to assume a consumer with few constraints on economic or cognitive processing resources. For example, scholars have argued that some confusion in the marketplace is not only inevitable but is also an overall positive in that encountering confusion trains consumers to be more resourceful and to learn how to interpret marketing communications more carefully. But not all consumers have the same level of cognitive and economic resources. Disadvantaged consumers—such as those not literate in the English language, those with lower socioeconomic status, and those who face both constraints—might benefit or be harmed by trademark law in ways that are different from the experiences of the lawyers and judges who determine the results of trademark disputes. Drawing on sociological and marketing literature to sketch a picture of the sometimes forgotten consumer, this Article encourages courts to consider whether the consumers at issue in a particular case face constraints that make it more difficult to engage with the modern marketing system. Such consideration might not change the results of any one case, but it will at least bring more attention to when some consumers are left behind.