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Trademarks and Consumer Search Costs on the Internet

72 Pages Posted: 2 Jul 2004  

Stacey L. Dogan

Boston University - School of Law

Mark A. Lemley

Stanford Law School

Abstract

In theory, trademarks serve as information tools, by conveying product information through convenient, identifiable symbols. In practice, however, trademarks have increasingly been used to obstruct the flow of information about competing products and services. In the online context, in particular, some courts have recently allowed trademark holders to block uses of their marks that would never have raised an eyebrow in a brick-and-mortar setting - uses that increase, rather than diminish, the flow of truthful, relevant information to consumers. These courts have stretched trademark doctrine on more than one dimension, both by expanding the concept of actionable "confusion" and by broadening the classes of people who can face legal responsibility for that confusion. And they have based their decisions not on the normative goals of trademark law, but on unexplored instincts and tenuous presumptions about consumer expectations and practices on the Internet. We argue that this expansionist trend in Internet trademark cases threatens to undermine a central goal of the Lanham Act - to promote fair and robust competition through reducing consumer search costs.

Suggested Citation

Dogan, Stacey L. and Lemley, Mark A., Trademarks and Consumer Search Costs on the Internet. Houston Law Review, Vol. 41, p. 777, 2004; Stanford Law and Economics Olin Working Paper No. 294. Available at SSRN: https://ssrn.com/abstract=560725 or http://dx.doi.org/10.2139/ssrn.560725

Stacey L. Dogan

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

Mark A. Lemley (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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