Intent and Trademark Infringement

Abstract

This Article describes how and why the use of intent in trademark infringement cases has become unintelligible. It does so by first identifying the supposed relevance of intent to trademark infringement. Leading cases state that a defendant’s intent matters because defendants who deliberately try to confuse consumers must believe that consumers are susceptible to confusion. Accordingly, a defendant’s intent to infringe functions like an implied assertion that the defendant’s behavior is likely to cause the desired confusion. This Article then explains how problems have arisen because courts do not use intent in this specific manner. Instead, courts use intent to portray innocent defendants as faulty actors who deserve liability for infringement. Such use of intent may make intuitive sense, but it is inconsistent with the reasons given for intent’s relevance in the first place. This Article describes how such improper use of intent makes the law unintelligible, and it argues that the law can be improved by paying proper attention to the given reasons for intent’s importance to trademark infringement cases.