Giving Credit Where Credit Is Due: Revisiting the Doctrine of Reverse Passing off in Trademark Law

During the past twenty years, courts have increasingly come to accept a cause of action for "reverse passing off." Unlike the more typical case of passing off, reverse passing off occurs when a defendant sells a product manufactured by a plaintiff under the defendant's own mark. Despite this difference, courts regularly invoke federal and state trademark laws, including the Lanham Act, to give the plaintiff a right to recover. This Article challenges that conclusion. It argues that the Lanham Act does not actually support a cause of action against a defendant who engages in reverse passing off.

In addition, most producers should not have a right to insist that they be acknowledged as the source of a product. The only exception to this conclusion is for artists, who, for several reasons, warrant this sort of protection.