Reading list: trademark standing after Lexmark

John L. Brennan, Determining
Trademark Standing in the Wake of Lexmark
, 90 Notre Dame L. Rev. 1691
(2014). I like it:
Although the Court’s decision in
Lexmark has resolved the debate over the issue of standing for false
advertising claims, it remains unclear whether the Court’s holding also extends
to trademark infringement suits brought under section 43(a). The Court did not
explicitly address this question in its opinion, and district courts thus far
have differed in their interpretations of the decision’s scope.
This Note addresses that ambiguity
and aims to resolve it. It examines relevant statutory language, case law, and
scholarly criticism, and ultimately contends that the standard articulated in
Lexmark should apply to both types of claims. Part I provides background
regarding the history of the Lanham Act, looking particularly at the ways in
which courts have treated trademarks and false advertising differently. Part II
discusses the Lexmark decision and the recent district court cases that have
addressed its holding. Part III examines the text of both the Lanham Act and
the Supreme Court’s opinion in Lexmark in order to determine the decision’s
scope, and concludes that Lexmark’s holding applies equally to false
advertising and trademark claims. Finally, Part IV, which is divided into two
subsections, advances policy-based arguments for such a uniform application of
the Lexmark standard. Generally, Part IV discusses the expansive nature of
modern trademark law and explores the ways in which Lexmark’s standing
requirement might serve as a narrowing force. First, Section IV.A laments the
lack of a materiality requirement in trademark law and demonstrates how
Lexmark’s proximate cause requirement might make up for that absence. Section
IV.B focuses specifically on one area of application in trademark law—the
initial interest confusion doctrine—and suggests that Lexmark, if properly
applied, could possibly eliminate this doctrine.

RT: Sadly, this proposition may seem more logical to scholars than to courts, if results so far are any indication.

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