Trademark Use and the Problem of Source

This Article mediates a scholarly debate regarding the existence and desirability of a “trademark use” doctrine. It argues that trademark use is a predicate of liability under the Lanham Act, but those who advocate treating trademark use as a threshold question put much more weight on that concept than it can bear. Courts cannot consistently apply trademark use as a distinct element of the plaintiff’s prima facie case be-cause trademark use can be determined only from the perspective of con-sumers. Specifically, courts can determine whether a defendant has made trademark use of a plaintiff’s mark only by asking whether consumers are likely to view the defendant’s use as one that indicates the source of the defendant’s products or services. Because such an inquiry is, by its na-ture, highly context-sensitive, trademark use is not a concept capable of serving the limiting function advocates hope. The trademark use debate, however, reveals a fundamental problem in modern trademark law and theory. Consumer understanding, and particularly consumer understand-ing of “source,” defines virtually all of modern trademark law’s bounda-ries. But these boundaries are never fixed because consumer understand-ing is inherently unstable, particularly with respect to an ill-defined term like “source.”

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