Trademarks and Consumer Search Costs on the Internet
In theory, trademarks serve as information tools, by conveying productinformation through convenient, identifiable symbols. In practice, however,trademarks have increasingly been used to obstruct the flow of informationabout competing products and services. In the online context, inparticular, some courts have recently allowed trademark holders to blockuses of their marks that would never have raised an eyebrow in abrick-and-mortar setting - uses that increase, rather than diminish, theflow of truthful, relevant information to consumers. These courts havestretched trademark doctrine on more than one dimension, both by expandingthe concept of actionable "confusion" and by broadening the classes ofpeople who can face legal responsibility for that confusion. And they havebased their decisions not on the normative goals of trademark law, but onunexplored instincts and tenuous presumptions about consumer expectationsand practices on the Internet. We argue that this expansionist trend inInternet trademark cases threatens to undermine a central goal of theLanham Act - to promote fair and robust competition through reducingconsumer search costs.