The trouble with trademark law is that it tries to serve two different masters at

the same time. Over the years, multiple justifications have been provided for

trademark protection. Trademarks are a creation of common law,’ and early cases

provide insight into the reasoning for mark protection. Although a federal trademark

statute now exists (the Lanham Act),

for state trademark rights and does not alter the basic contours of the common law.

2 it essentially operates as a national register3

As a result, courts have been free to arrive at their own justifications for trademark

protection. As these justifications have been refined through years of common law

development, two primary rationales have emerged.

On the one hand, trademark law is designed to protect the buying public. When

evaluating a claim of infringement, courts will only prevent trademark uses that are

likely to confuse consumers.’ By preventing confusing uses of a mark by

competitors, trademark protection provides an incentive for the mark holder to

invest in product quality and, thereby, promotes consumer interests.’ If confusing

uses of a trademark were permitted, producers would have little incentive to invest

in their products as competitors could siphon off business goodwill.

also promote the public good by increasing efficiency: instead of engaging in a

rigorous analysis of a product every time a purchase is made, a consumer can rely

on a brand name as a valuable indicator of product reliability.

On the other hand, consumers are not the direct beneficiaries of trademark

protection and the courts have occasionally justified trademark protection by citing

the need to legally recognize the trademark holder’s time and effort in building its

brand.

advertisers by allowing them to prevent others from using their mark and gives

businesses a way to protect the goodwill created in their business and to stop

activities that threaten to dim the commercial resonance of their marks.

The tension that exists between these two rationales for trademark law has

generated vigorous debate. The debate revolves around the critics’ view of

6 Trademarks7 This justification recognizes that trademark law awards a precious right to