Misappropriation-Based Trademark Liability in Comparative Perspective

This chapter for the Cambridge Handbook on Comparative and International Trademark Law compares the doctrinal strategies deployed by the European Union and United States to serving the anti-misappropriation impulse in trademark law. While the EU's enforcement regime openly embraces anti-misappropriation norms, the ostensible American antipathy to such reasoning finds its expression in the muddled American doctrines of dilution by blurring and post-sale confusion. I show how such doctrines conceal misappropriation-based outcomes under a hodgepodge of weak consumer-psychology-based rationales. I further show how this doctrinal smokescreen does violence to other important American trademark doctrines, such as the first-sale doctrine and the law of contributory liability