Document Type

Article

Journal Title

North Carolina Law Review

Volume

104

First Page

719

Publication Date

3-2026

Abstract

The accepted purpose of trademark law is to help consumers locate and verify what they want to buy, a task accomplished by linking producers to reputations through marks. Nevertheless, trademark law fully permits the strategic use and non-use of marks by their owners to conceal information rather than reveal it— strategies herein termed masking. Masking encompasses a range of widespread and well-accepted market practices, including rebranding to escape a negative reputation, maintaining an old trademark despite significant product changes or degradation, and using white labels or private labels to obscure origin outright.

Despite doctrines that purport to stop confusion and deception, trademark law has no internal prohibitions on masking. As a result, trademarks allow producers to raise search costs (not just lower them) and liquidate or abandon their reputation (not just preserve it). The orthodox story of trademark law is therefore incomplete, and longstanding debates—like the propriety of post-sale confusion and dilution as actionable conduct—are proceeding on fundamentally mistaken terms. Efficient uses of masking suggest instead that a property theory of trademark law is much more compelling and coherent than the literature has recognized to date.

Even some welfare-reducing masking strategies are apt to be self-correcting in a competitive market in the long run, but not all of them. In particular, self-correction is especially unlikely when information costs for consumers are high. Where firms are able to manipulate perception via marks without consequences, state and federal consumer deception law can therefore play a complementary, information-forcing role.

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