Probabilistic Knowledge of Third-Party Trademark Infringement

18 Pages Posted: 10 Aug 2011 Last revised: 25 Oct 2011

Date Written: August 8, 2011


This essay views secondary trademark liability in light of tort law’s treatment of parties whose actions expose a plaintiff to third party-wrongdoing. Broadly speaking, tort law imposes liability on a party for contributing to the tortious activity of another in two different ways. In vicarious and accomplice liability cases, courts impose the same liability on the defendant as they would have on the direct tortfeasors, had they been defendants: if the third-party wrongdoer is a batterer, the defendant is liable for battery. Another line of cases imposes liability for unreasonably putting a defendant at risk of third-party wrongdoing, and these cases are often based on knowledge of probabilistic harm. But crucially, these are negligence cases: even if the third party wrongdoer is a batterer, the defendant’s liability in these cases is for negligence and not for battery. The Supreme Court's Inwood decision preserves this important distinction between secondary liability for third-party tortious conduct and direct liability for one's own negligent conduct by requiring knowledge that particular actors are likely to infringe as a condition of secondary liability. If, however, courts were inclined to take more seriously their claims that trademark secondary liability law derives from general principles of tort law, then cases involving probabilistic harm would be viewed as negligence cases rather than trademark infringement cases. Liability in these cases would turn on an evaluation of the reasonableness of the defendant’s conduct in preventing harm, taking into account the full cost of alternative precautions. It would also turn on the trademark owner’s ability to prove causation - both in-fact and proximate - concepts that generally are completely absent from trademark cases.

Keywords: trademark, secondary liability, contributory infringement, torts, aiding and abetting

JEL Classification: K13, 034

Suggested Citation

McKenna, Mark P., Probabilistic Knowledge of Third-Party Trademark Infringement (August 8, 2011). Stanford Technology Law Review (STLR), Vol. 10, 2011; Notre Dame Legal Studies Paper No. 11-29. Available at SSRN:

Mark P. McKenna (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States
(574) 631-9258 (Phone)

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