This essay views secondary trademark liability in light of tort law’s treatment of parties whose actions expose a plaintiff to third-party wrongdoing. Broadly speaking, tort law imposes liability on a party for contributing to the tortious activity of another in two different ways. In vicarious and accomplice liability cases, courts impose on defendants the same liability to which the direct tortfeasors would have been subject, had they been defendants. If, for example, the third-party wrongdoer was a batterer, then the defendant is liable for battery. Another line of cases imposes liability for unreasonably putting a defendant at risk of third-party wrongdoing, and these cases are often based on knowledge of probabilistic harm. But crucially, these are negligence cases: even if the third-party wrongdoer is a batterer, the defendant’s liability in these cases is for negligence and not for battery. The Supreme Court’s Inwood decision preserves this important distinction between secondary liability for third-party tortious conduct and direct liability for one’s own negligent conduct by requiring knowledge that particular actors are likely to infringe as a condition of secondary liability. If, however, courts were inclined to take more seriously their claims that trademark secondary liability law derives from general principles of tort law, then cases involving probabilistic harm would be viewed as negligence cases rather than trademark infringement cases. Liability in these cases would turn on an evaluation of the reasonableness of the defendant’s conduct in preventing harm, taking into account the full cost of alternative precautions. It would also turn on the trademark owner’s ability to prove causation—both in-fact and proximate—concepts that generally are completely absent from trademark cases.
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