Post-Sale Confusion Confusion
posted by Gerard Magliocca
So Deven and I have started working on a paper about 3D printers–the first CoOp joint venture in a law review context, unless I’m mistaken. Thus, you may see posts here in the coming months about that project.
One problem that may be exposed by the growing use of 3D printing is the flawed doctrine of post-sale consumer confusion in trademark law. Outside of blatant counterfeiting, what is post-sale confusion? It goes something like this:
1. I see a product owned or used by someone else that looks substantially similar to trade dress that has secondary meaning.
2. I further observe that the object in question seems shoddy or is not up to my expectations of the brand with the secondary meaning.
3. I conclude that the brand owner is to blame and, therefore, the value of the mark is harmed.
I’ve never understood (nor do the cases explain well) how you get from step #2 to step #3. I strongly doubt that most people make judgments from used goods about new goods for the obvious reason that any deterioration (or gap in performance) is probably due to age or abuse from the owner.
Moreover, in a world of 3-D printing, lots of home-manufactured goods are going to look like familiar trade dress because people will print them that way. Not because they are trying to deceive anyone, but because they just like the shape. Granted, this may lead to trademark infringement suits against the individual user, the software programmer, or the manufacturer of the device, but it would far simpler to just abolish the doctrine entirely unless people actually use 3D printers to reproduce logos.