Tolerating Confusion About Confusion: Trademark Policies and Fair Use

This Article suggests that the role played by the “ordinarily prudent consumer” in trademark law should be more carefully scrutinized. Trademark infringement law’s “straightforward story,” which typically justifies trademark rights in terms of protecting consumers from the harms of likely confusion and dilution, does not adequately accommodate countervailing principles and policies. This Article argues that recognizing the incapacity of the likelihood of confusion and dilution analyses to capture the empirical reality of the consumer experience should lead to assigning greater weight to countervailing policies and principles. Trademark “fair use” doctrine provides a useful context in which to explore these ideas. The U.S. Supreme Court’s approach to fair use in KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc. risks valorizing consumer confusion in a context in which it should be downplayed. Moreover, the Court’s holding risks constraining the analytical space available in trademark law for expression and development of policy concerns other than those that underlie trademark’s straightforward story.