February 2007

By James H. Sullivan

The use of investigations to uncover and evaluate potential infringement and unfair competition claims can be an extremely effective weapon for any trademark owner. Usually, a key to successful trademark investigations rests in having the mark owner’s investigator pose as an ordinary consumer — essentially misrepresenting his or her true identity or purpose to the potential infringer. This practice of attempting to gain information through the arguable use of deception or invented scenario is now commonly referred to as “pretexting” and has led to controversy in the general corporate context. This article concludes that properly conducted and supervised pretext investigations remain in harmony with both the relevant case law and the policy goals of trademark and unfair competition law.

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