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The Missing Element in Trademark Infringement
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Journal Article
The Missing Element in Trademark Infringement
2025
Overview
As trademark law is currently litigated and understood, a plaintiff may succeed on an infringement claim by showing that (1) it owns a valid trademark, and (2) the defendant used a mark in commerce that is likely to confuse consumers into thinking that the plaintiff's and defendant's products come from the same source. We argue that this conventional understanding of the cause of action is missing an element: The plaintiff should also be required to show that the confusion arises from protectable features of the plaintiff's trademark. Without this \"causal tracing\" requirement, plaintiffs can effectively claim exclusive rights to features that the law allows anyone to use, such as functional features or generic terms. Eliding the link between protectable features and confusion can hinder competition and undermine the purposes of trademark law.
