Michael Grynberg (Oklahoma City University) has posted Trademark Litigation as Consumer Conflict on SSRN. Here is the abstract:
Trademark litigation typically unfolds as a battle between competing sellers who argue over whether the defendant's conduct is likely to confuse a relevant class of consumers. This is an unfair fight. The plaintiff effectively represents two parties. She defends her trademark and simultaneously protects consumers who may be confused by the defendant's behavior. The defendant, by contrast, stands alone.
The resulting "two-against-one" storyline gives short shrift to the interests of non-confused consumers who may benefit from the defendant's purportedly infringing behavior. Ignoring these consumers is especially problematic given the ease with which courts apply pejorative labels, like "misappropriation" and "free riding," to the conduct of trademark defendants. As a result, courts are too receptive to non-traditional trademark claims, like initial interest and post-sale confusion, for which the case for consumer harm is questionable.
More rational results are available by appreciating trademark litigation's parallel status as a conflict between consumers. This view treats junior and senior trademark users as proxies for different consumer classes and recognizes that likely confusion among one group of consumers may affirmatively harm others. Focusing on the interests of benefited and harmed consumers would minimize the weight given to moral rhetoric in adjudicating trademark claims. Calling a junior user a "free rider" is one thing; condemning his customers is another. Appreciating trademark's consumer-conflict dimension would enable a fuller assessment of the public interests at stake in litigation and counter dubious efforts to expand trademark's scope.
