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Rebecca Tushnet, What's the Harm of Trademark Infringement?, 49 Akron L. Rev. 627 (2015).

Abstract: Presented at the Oldham 2016 Annual Lecture at the University of Akron School of Law. Over the course of the twentieth century, judges came to accept trademark owners’ arguments that any kind of consumer confusion over their relationship to some other producer caused them actionable harm. Changes in the law of remedies, however, have recently led some courts to question these harm stories. This Article argues for even more attention to trademark’s theories of harm; a clear-eyed look at the marketing literature, as well as the facts of particular cases, indicates that confusion about non-competing products is often harmless.