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.
Case Comment: Bhogaita v. Altamonte
EVERY DOG CAN HAVE HIS DAY IN COURT: THE USE OF ANIMALS AS DEMONSTRATIVE EXHIBITS Kyle R. Kroll, Volume 100, Online Managing Editor In Bhogaita v. Altamonte, the Eleventh Circuit recently decided whether to allow a dog in the courtroom as a demonstrative exhibit. Although the case presented many serious [...]
Revisiting Water Bankruptcy
REVISITING WATER BANKRUPTCY IN CALIFORNIA’S FOURTH YEAR OF DROUGHT Olivia Moe, Volume 100, Managing Editor This spring, as “extreme” to “exceptional” drought stretched across most of California—indicating that a four-year streak of drought was not about to resolve itself—Governor Jerry Brown issued an unprecedented order to reduce potable urban water [...]
Defying Auer Deference
DEFYING AUER DEFERENCE: SKIDMORE AS A SOLUTION TO CONSERVATIVE CONCERNS IN PEREZ v. MORTGAGE BANKERS ASSOCIATION Nicholas R. Bednar, Volume 100, Lead Articles Editor* On March 9, 2015, the Supreme Court of the United States handed down its decision in Perez v. Mortgage Bankers Association. The Court overturned the D.C. [...]