Essay - Tolerating Confusion About Confusion: Trademark Policies and Fair Use

34 Pages Posted: 2 Sep 2007 Last revised: 3 Jul 2012

See all articles by Graeme W. Austin

Graeme W. Austin

Victoria University of Wellington

Multiple version iconThere are 2 versions of this paper

Date Written: July 2, 2012


In this essay, Professor Austin urges courts to be more critical of the role played by the "ordinarily prudent consumer" in trademark law. Trademark infringement law's "straightforward story," which typically justifies trademark rights in terms of protecting consumers from the harms of likely confusion and dilution, does not adequately capture the need for countervailing principles and policies to contribute to the shape of trademark doctrine. The essay argues that recognizing the incapacity of the likelihood of confusion and dilution analyzes to capture the empirical reality of the consumer experience should lead to a greater preparedness to weigh countervailing policies and principles more heavily in the scale.

Trademark "fair use" doctrine provides a useful context in which to explore these ideas. The Supreme Court's approach to fair use in KP Permanent Make-Up, Inc. v. Lasting Impressions I, Inc. risks valorizing consumer confusion in a context in which it should be downplayed. Moreover, the Court's holding risks constraining the analytical space available in trademark law for expression and development of policy concerns other than those that underlie trademark's straightforward story.

Keywords: trademarks, consumers, fair use

Suggested Citation

Austin, Graeme W., Essay - Tolerating Confusion About Confusion: Trademark Policies and Fair Use (July 2, 2012). Arizona Law Review, Vol. 50, 2007; TRADEMARK LAW AND THEORY, Graeme B. Dinwoodie and Mark Janis, eds., Elgar Press, 2007; Arizona Legal Studies Discussion Paper No. 07-18; Victoria University of Wellington Legal Research Paper No. 6/2011. Available at SSRN:

Graeme W. Austin (Contact Author)

Victoria University of Wellington ( email )

PO Box 600
Wellington, 6140
New Zealand


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