The trademark doctrine of post-sale confusion is a creation of the lower federal courts that has never been accepted, or even considered, by the Supreme Court. The Article argues that the doctrine should be discarded. Courts use the term “post-sale confusion” inconsistently to refer to three different species of liability, each of which suffers from some fundamental infirmity. The first species, which the author labels “bystander confusion,” is theoretically sound but in practice imposes liability based on mere speculation. The second species, which he labels “downstream confusion,” conflicts with long-standing Supreme Court precedent regarding contributory infringement and the first-sale doctrine. The final species, which he labels “status confusion,” is theoretically inconsistent with other areas of infringement law. Status confusion extends the information economics theory that undergirds trademark infringement doctrine beyond its traditional application to information about products and into the realm of information about people. In so doing, status confusion invokes the aid of the state in privileging some speakers over others in social- rather than commercial- discourse. The Article concludes by framing the legal and policy issues endemic to this unique area of trademark doctrine, concluding that post-sale confusion is unsupportable as a matter of both trademark- and First-Amendment policy.
News & Events
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Volume 97 Lead Piece Profiled in New York Times
The Volume 97 Lead Piece, a study of how the Supreme Court treats business interests by distinguished legal scholars Lee Epstein, William M. Landes, and Richard A. Posner, was profiled in the May 5, 2013 edition of the New York Times. The story, titled Corporations Find a Friend in the Supreme Court, [...]
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Volume 98 Spring Submissions Closed
The Minnesota Law Review has closed the spring submissions period for Volume 98. Submissions for Volume 98 will reopen on Thursday, August 1. Please see the submissions page for more details.
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Volume 98 Submissions Will Open Feb. 15
The Minnesota Law Review will begin accepting submissions for Volume 98 on Friday, February 15, 2013. Please see this page for more details.
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Minnesota Law Review Announces Volume 98 Editorial Board
The Minnesota Law Review is pleased to announce its Volume 98 editorial board, headed by Editor in Chief Jake Vandelist.
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Minnesota Law Review Announces 2013 Symposium Topic
The Minnesota Law Review is pleased to announce that its 2013 symposium will address the legal and political issues facing organized labor in the United States. The symposium will be held at the University of Minnesota Law School on October 25, 2013.
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