Trademark litigation is complex and resource consuming
Glynn S. Lunney Jr. 18, Professor of Law, Texas A&M University School of Law, “Trademark’s Judicial De-Evolution: Why Courts Get Trademark Cases Wrong Repeatedly”, 106 Calif. L. Rev. 1195 (2018), JSTOR, 2018
Despite exonerating the specific defendants for the specific conduct at issue in the two cases, these new doctrines added both unpredictability and complexity to trademark law. In terms of unpredictability, when a circuit court creates a new defense or exception, an attorney can do little better than guess whether another circuit court will adopt it, and if so, in what form. For example, the Second and Third Circuits have adopted the nominative fair use defense, but both have modified it. While the Third Circuit modified the doctrine only slightly,190 the Second modified it far more substantially.191 The Sixth Circuit has so far rejected nominative fair use entirely.192
In terms of complexity, while complexity in trademark rules can improve our ability to match actual to optimal outcomes, complexity also increases the cost of trademark litigation. These increased costs have led, and will continue to lead, to a two-tiered trademark system: one system for those who can afford it, and a second for those who cannot. For those who can afford it, a complex legal system can produce reasonably sensible, albeit expensive, outcomes. For the far larger number of market participants who can no longer afford trademark litigation, theoretically perfect but complex trademark rules offer only theoretical justice. In reality, for those who cannot afford to marshal them, such rules offer no justice at all. Unable to afford the high costs of trademark litigation, these market participants can neither vindicate their own trademark interests when infringed by others, nor defend themselves against excessive and overbroad assertion of trademark rights by well-funded bullies.193