Book contents
- The Cambridge Handbook of International and Comparative Trademark Law
- The Cambridge Handbook of International and Comparative Trademark Law
- Copyright page
- Contents
- Editors and Contributors
- Foreword
- Preface
- Part One International Aspects of Trademark Protection
- Part Two Comparative Perspectives on Trademark Protection
- I The Nature and Functions of Trademarks
- II Signs That Can Be Protected as Trademarks
- III Public Policy Limitations of Trademark Subject Matter
- IV The Relationship between Trademarks and Geographical Indications
- V Certification and Collective Marks
- VI The Relationship between Trademark Law and Advertising Law
- VII The Relationship between Trademark Law and the Right of Publicity
- VIII Trademarks and Domain Names
- IX Overlapping Rights
- X Theories Underlying the Standards for Trademark Infringement
- 27 Misappropriation-Based Trademark Liability in Comparative Perspective
- 28 The Doctrine of Instruments of Fraud in Historical Perspective
- XI Trademark Dilution
- XII Secondary Trademark Liability
- XIII Trademark Defenses
- XIV The Principle of Exhaustion of Trademark Rights
- XV Trademark Transactions
- Index
28 - The Doctrine of Instruments of Fraud in Historical Perspective
from X - Theories Underlying the Standards for Trademark Infringement
Published online by Cambridge University Press: 18 September 2020
- The Cambridge Handbook of International and Comparative Trademark Law
- The Cambridge Handbook of International and Comparative Trademark Law
- Copyright page
- Contents
- Editors and Contributors
- Foreword
- Preface
- Part One International Aspects of Trademark Protection
- Part Two Comparative Perspectives on Trademark Protection
- I The Nature and Functions of Trademarks
- II Signs That Can Be Protected as Trademarks
- III Public Policy Limitations of Trademark Subject Matter
- IV The Relationship between Trademarks and Geographical Indications
- V Certification and Collective Marks
- VI The Relationship between Trademark Law and Advertising Law
- VII The Relationship between Trademark Law and the Right of Publicity
- VIII Trademarks and Domain Names
- IX Overlapping Rights
- X Theories Underlying the Standards for Trademark Infringement
- 27 Misappropriation-Based Trademark Liability in Comparative Perspective
- 28 The Doctrine of Instruments of Fraud in Historical Perspective
- XI Trademark Dilution
- XII Secondary Trademark Liability
- XIII Trademark Defenses
- XIV The Principle of Exhaustion of Trademark Rights
- XV Trademark Transactions
- Index
Summary
Jeremy Sheff’s piece in this volume (Chapter 27) persuasively analyses the case law from the United States suggesting that a trader might be liable for infringement of a trademark as a result of confusion caused after an initial non-confusing sale by identifying three categories of post-sale confusion which he terms bystander confusion, status confusion and downstream confusion.1 The latter is directed at the situation in which a non-confused purchaser resells or gives the defendant’s goods (including replicas of the claimant’s goods) in a secondary market in a way that will confuse purchasers or recipients of those goods. Sheff argues that to find a defendant primarily liable in such a situation creates a “serious tension with the law of contributory liability,” in so far as it allows for the possibility of liability for acts that do not meet joint-tortfeasorship’s intent standard.
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- Publisher: Cambridge University PressPrint publication year: 2020