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Contribution to Book
The comparative law and economics of counterfeits and post-sale confusion
Faculty Scholarship
  • Peter K. Yu, Texas A&M University School of Law
Document Type
Book Section
Publication Date
12-2023
ISBN
9781786430472
DOI
10.4337/9781786430472.00025
Abstract

This chapter interrogates the economic justifications for the doctrine of post-sale confusion at both the domestic and international levels. It begins by exploring those justifications in the trademark holder’s home market. Focusing on U.S. trademark law, this initial analysis shows the doctrine’s weak economic justifications except in cases where the presence of counterfeits will undermine the rarity or other quality-unrelated attributes of status goods. This chapter then turns to the trademark holder’s foreign markets—in particular, those in developing countries where counterfeits are frequently made. This comparative analysis shows further that the economic justifications for the doctrine of post-sale confusion are even weaker in these markets. Because many foreign jurisdictions have not adopted the doctrine of post-sale confusion, the analysis focuses on a special category of counterfeits that does not cause point-of-sale confusion: nondeceptive counterfeits. Based on the economic analyses of this doctrine in both developed and developing country markets and in relation to varying types of counterfeits, this chapter concludes by offering five recommendations for courts, legislators, and policymakers to reform trademark law in the area of post-sale confusion.

Num Pages
23
Series
Research Handbooks in Law and Economics series
Publisher
Edward Elgar Publishing
Editor
Glynn S. Lunney, Jr.
Book Title
Research Handbook on the Law and Economics of Trademark Law
Citation Information
Peter K. Yu. "The comparative law and economics of counterfeits and post-sale confusion" (2023) p. 363 - 385
Available at: http://works.bepress.com/peter_yu/361/