LSN: Harvard Law School, Public Law & Legal Theory Research Paper Series, Vol. 23 No. 4, 12/16/2021 - gconk@fordham.edu - Fordham University Mail

What's the Harm of Trademark Infringement?" 
Akron Law Review, Vol. 49, No. 3, 2015
Harvard Public Law Working Paper No. 21-41

REBECCA TUSHNET, Harvard Law School
Email: rtushnet@law.harvard.edu

This Article explores the classic harm theories of trademark infringement that don't involve sales substitution and argues that courts should recognize their empirical weakness. Despite the expansion of infringement liability based on new theories of such harm, questions about what constitutes trademark harm are now being reexamined at the remedy stage. These changes are positive to the extent that they make courts rethink overly expansive models of trademark confusion.