David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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This brief essay, written for a special issue on teaching intellectual property law, considers the "reasonable consumer" as he or she appears in trademark law cases. The "reasonable consumer" in trademark law is similar to tort law's "reasonable person," but they are not identical beings. The reasonable person in tort law is someone who sets a standard of care, who models how the law tells us we should act as we go about our lives. But the reasonable person in trademark law is more rule-like than standard-like. He or she doesn't embody an aspiration but rather, much like the speed limit on a highway, establishes the dividing line ex ante between what is legally appropriate and what is error. As a result, the reasonable consumer in trademark law is very much a judicial construct, a mythical figure assumed to have a certain set of characteristics - not surprisingly, often similar to those held by the court. By offering some examples from the case law, this essay encourages educators and their students to consider how often this judicial construct matches reality. For example, courts that look to a consideration of "sound, sight, and meaning" in determining whether two trademarks are similar (and therefore likely to be confused) may not always recognize that consumers hear, see, and interpret trademarks in unpredictable ways. Trademark law should expect consumers to exercise a fair amount of judgment, but it's useful to remember that, as Edward Rogers wrote almost one hundred years ago, trademark's "reasonable consumer" is "a real person . . . endowed with certain faculties and possessed of certain failings." The necessities of litigation may require judicial abstractions, but the realities of the marketplace persist.
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