ABSTRACT
Trademark law is motivated in part by the goal of protecting certain consumer understandings. But courts typically treat such consumer understanding as a pre-determined, relatively fixed, fact to which the template of trademark law can be applied and from which answers to the relevant legal questions thus inevitably flow. Prof Dinwoodie challenges this approach as descriptively incomplete and prescriptively harmful. Trademark law is becoming over-concerned with discerning, and validating, the detailed reality of consumer understandings – often without contemplating, or even at the expense of, competing normative concerns. The US Supreme Court’s recent decision to uphold the registration of the mark BOOKING.COM for travel reservation services because the Court refused to discount evidence of actual consumer perception has only served to illustrate this problem. Professor Dinwoodie argues that trademark law should be less fixated on ascertaining, acting upon, and declaring, empirical realities of consumer association and confusion. Instead, courts need more openly – and more fully – to understand trademark as a normative project. In this climate, efforts to enhance the quality of factual input to particular trademark disputes should be a lower priority for trademark law. And, if over-emphasized in ways that downplay the normative character of trademark law, such well-intentioned efforts at improved empiricism may even be counterproductive.
Dinwoodie, Graeme B, Trademark Law as a Normative Project (August 31, 2023).
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