We All Know It's a Knock-off! Re-evaluating the Need for the Post-sale Confusion Doctrine in Trademark Law

January 8, 2013
Counterfeit luxury goods have become an undeniable part of the global economy. It is estimated that these goods account for roughly seven percent of the global marketplace. With the emergence of the counterfeit market, consumers have become sophisticated shoppers who are knowledgeable and educated about their brand preferences as well as the availability of counterfeits, replicas and knock-off luxury goods. Indeed, research suggests that consumers are eager to purchase unauthentic products to gain status, without the cost. To combat this trade, trademark holders have sought infringement actions against the purveyors of counterfeit goods alleging post-sale confusion. Post-sale confusion provides a basis for finding a likelihood of confusion where the purchaser is aware that the product is fake, but the general consuming public may believe the counterfeit article to be a legitimate good. This Article evaluates whether the post-sale confusion doctrine is a legitimate expansion of trademark law and argues that such a doctrine is no longer necessary in a sophisticated marketplace where other remedies are available to curtail the trade in counterfeit goods.