Should Strong Trademarks Receive Narrower Scope of Protection?

Trademark Law: Avoiding Confusion Among Consumers

The original idea behind trademark law was to protect consumers. Under the current legal regime in the United States, the distinctiveness of a certain mark is what is actually protected under the law. However, the governing likelihood of confusion test, contrary to what its name suggests, does not entail the analysis of intuitions of consumers. It is a rather a complex balance test that consists of multiple elements, and does not have much to do with actual consumer reactions. Courts apply the test by reviewing such factors as strength of plaintiff’s mark, similarity of marks, relatedness of products, relatedness of marketing channels and likelihood plaintiff will bridge the gap, or buyer care and sophistication, among others. Generally, modern trademark law equips a trademark owner with a number of rights, but seems to neglect the interests of consumers.

Does Stronger Mean Less Confusing?

Some argue that stronger (or well-known) marks that generally have a greater level of distinctiveness and are more recognizable among the population should be less prone to being mistaken with other marks. As a result, stronger marks should receive narrower scope of protection. Isn’t it a fact that a strong mark is so clear that the relevant public recognizes it immediately? However, less protection to stronger marks might cause confusion among consumers if such very famous marks are used in relation to goods or services unconnected with their original source.

The future of trademark law, and specifically protection granted to strong marks relies on two aspects:

  1. Whether a low level of distinctiveness will remain a factor in the similarity of the marks analysis; and
  2. How the likelihood of confusion test will be reevaluated.

Though, let’s do not forget that trademark law is designed to protect the consumers, and not solely the interests of the marks’ owners.

Do you think that famous marks are strong enough without broad trademark law protection?



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