A trademark’s purpose is to help consumers identify a service or product’s source. To this end, trademark owners may prevent others from using their marks on similar goods. But to ensure that a few savvy businesspersons do not monopolize certain terms, the Lanham Act carves out specific exceptions to trademark protection. Some of these exceptions include indications of geographic origin, such as Bordeaux and Napa Valley. Wine, however, has long been identified primarily by the geographic region in which its grapes grow. To ameliorate this fundamental divide, and to preserve the integrity of their Geographical Indications in the eyes of consumers, wine producers may obtain certification marks. But in wine trademark disputes, courts have inconsistently applied consumer confusion analyses, creating an unclear “standard” that wine producers must meet in order to protect their marks. This comment introduces and compares trademark protections under TRIPS and the Lanham Act. In the context of wine, it explains the significance of Geographic Indications as source indications, outlining why they are a point of contention in international trademark law. It then goes on to explain the substantive protections that are available to a Geographic Indication under the Lanham Act. Through an analysis of courts’ interpretations of TRIPS and the Lanham Act, this comment concludes that courts often misidentify the consumer relevant to the analysis. Rather than a highly sophisticated consumer, this comment proposes that the true consumer of wine is the average consumer, with limited exceptions. This comment proposes that courts adopt an average consumer analysis unless it is proven by a preponderance of the evidence that the consumer is sophisticated. The comment concludes by answering possible critiques that this change would bring.
Angela Huisingh, I Like Cabernet and Merlot But I'm Not Drinking Bordeaux: Certified Confusion, 13 J. Marshall Rev. Intell. Prop. L. 203 (2013)