Recent Critiques of Post-Sale Confusion: Is Materiality the Answer?

Kal Raustiala and Christopher Sprigman are well known as the authors of the book, The Knock-Off Economy: How Imitation Sparks Innovation (2012). In their new article, Rethinking Post-Sale Confusion, Raustiala and Sprigman level a critique at "post-sale confusion" theory that supports many of their book's conclusions about the virtues of so-called knock-offs. In post-sale confusion cases, courts find infringement even when it is abundantly clear that consumers of obvious knock-offs are not confused at the time of purchase.Raustiala and Sprigman's critique of post-sale confusion theory adds to similarly critical scholarship by others such as Jeremy Sheff and Mark McKenna, whose articles Veblen Brands and A Consumer Decision-Making Theory of Trademark Law, respectively, provide the backbone for much of the discussion in this post. Professor Sheff also has a forthcoming book chapter in the Cambridge Handbook on Comparative and…

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