I went a-shopping at Costco yesterday and bought a 2 pounds of organic butter, Kirkland brand but a label that so closely mimicked Organic Valley butter that I thought it was. Well, it is... Costco cuts a deal with Organic Valley to slap the Kirkland label on Organic Valley production run. The ink, style, layout, graphics are all the same, except where the package says "organic valley" the Costco package says "Kirkland."
Now in trademark law an actionable offense is to have a label that is confusingly similar, since the law views this as a wicked practice. Costco and Organic Valley view this in practice as a good thing, so they agree to do it. Of course, when two entities agree on a practice, it is usually legal. But my point is, as a practice, by developing a confusingly similar label, both companies benefit. That is not supposed to happen, but it does.
I was fooled by the packaging, but not distressed, since I wanted Organic Valley, and I got Organic Valley. if this were not true, Costco would suffer by my resentment. With or without trademark law, this would be true.
Without trademark law, any time one was fooled by a label, and did not get what was expected, the distribution chain that proffered the offending item would suffer. This is necessary, and it is sufficient. We do not need trade mark law.
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