Confusion Over Use: Contextualism in Trademark Law

The paper critiqued the trademark use theory, arguing it was flawed and should be rejected. It claimed that the theory over-extended the search costs rationale and prioritized formalism over contextual analysis in trademark law, leading to less transparent decision-making. The authors advocated for retaining traditional contextual analysis, which they believed would better address trademark disputes, particularly in online advertising. They suggested that this approach would allow for individualized assessments and the development of statutory safe harbors for intermediaries like search engines.