David Simon, ‘Trademark Law and Consumer Safety’

Trademark law protects consumers and mark owners against economic harm. When consumers are confused about the source of a good or service, this increases consumer search costs or imposes reputational costs on trademark owners. But what happens when a pharmacist, confused by two similar drug names, accidentally prescribes estrogen instead of an antidepressant? Trademark law, in such cases, has adapted its core doctrine – likelihood of confusion – to protect the public from another kind of injury: physical harm. By lowering the standard required for confusion when physical harm could result, courts recognized that standard trademark analysis did not always capture the harms posed by various kinds of confusion. This Article argues that courts should, for similar reasons, adjust the standard for deceptiveness. When a mark’s potential to mislead consumers about the nature of the product poses a risk to the consumers’ physical safety, courts should lower the standard for finding the mark deceptive.

David A Simon, Trademark Law and Consumer Safety 72 Florida Law Review 673 (2020).

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