Proponents of intellectual property frequently mix together distinct concepts: the different types of IP (patent, copyright, trademark, trade secret), along with fraud, plagiarism, stealing, piracy, contract breach, lying, dishonesty, attribution, and credit. These are not the same thing. I have addressed this confusion at length elsewhere (see the resources below).
A common residual defense of trademark law is that, whatever its excesses, it is at least an attempt to stop fraud. It is not.
Trademark infringement does not require the plaintiff to prove fraud. It requires only a showing of consumer confusion—and not even actual confusion, merely a likelihood of confusion. For famous marks, anti-dilution (blurring or tarnishment) claims do not require likelihood of confusion at all. The cause of action belongs to the trademark holder, not to any customer who was supposedly confused or defrauded. The holder is not the victim. If the concern were genuine fraud, the right to sue would belong to the buyer whose consent was obtained by deception. It does not.
In short, trademark law protects a reputation right. That is why defamation law belongs in the same category as trademark as a form of intellectual property: both treat the value of what others think as a property right enforceable against third parties, and both are unjust for the same reasons.
Patent, copyright, and trademark also have nothing to do with authorship, credit, or identifying the true source of a creation or invention. They prohibit people from using a certain pattern—regardless of whether the user’s name is on the work, whether buyers know the source, or whether anyone was deceived. That is infringement, not fraud.
Frank Van Dun once argued that without trademark law one could not identify the source of goods and that fraud would have no meaning. This is mistaken. Language and communication are sufficient. A buyer can condition a purchase on the seller being the same firm that originated at a given address, or on any other identifying fact. We identify people and firms every day without trademarks on their names. John Smith is a common name; ordinary communication handles the rest.
Consider the Libertarian Party’s use of trademark. The Libertarian National Committee has sued disaffiliated state affiliates (including in Michigan and New Mexico) to stop them from using the name “Libertarian Party,” which the LNC holds as a federally registered trademark. The usual assumption is that the LNC is thereby stopping theft of its IP or preventing consumer confusion. But the LNC also licenses the same mark to recognized affiliates. Those affiliates are separate legal entities. Why is their use of the mark not fraudulent or confusing, while an unaffiliated group’s use is? The same logic applies to ordinary franchising. The McDonald’s in Boise is not owned by McDonald’s Corporation. Is that a lie to consumers? If not, then trademark is not a system for enforcing truth about source; it is a system for granting one party the power to authorize others to use a name while forbidding everyone else from doing so. It enables the holder to decide who may “speak as” the brand and who may not—regardless of whether any buyer is actually deceived.
Fraud is already a recognized form of aggression under ordinary libertarian legal principles: it is theft by trick, a taking of property without genuine consent. Trademark law is not required to address it. What trademark law does is create a state-granted monopoly over language and symbols that the holder can wield against competitors, dissenters, and speakers, even when no one has been defrauded.
Resources
- Hello! You’ve Been Referred Here Because You’re Wrong About Intellectual Property (C4SIF). Collects the arguments against conflating plagiarism, fraud, contract breach, and the various forms of IP; includes the section “If you oppose IP you support plagiarism; copying others is fraud or contract breach.”
- Defamation as a Type of Intellectual Property, in Jörg Guido Hülsmann & Stephan Kinsella, eds., A Life in Liberty: Liber Amicorum in Honor of Hans-Hermann Hoppe (Papinian Press, 2024). Argues that defamation/reputation rights are a form of IP, with the closest structural similarity to trademark.
- Trademark Ain’t So Hot Either…; Trademark and Fraud; Discussion with George Reisman (C4SIF, 2013). Core statement that trademark gives the right of action to the mark holder (who is not defrauded), not the customer; knock-off buyers who know they are buying fakes are not defrauded; anti-dilution extends the right further.
- How Trademark Law Has Turned From A Consumer Protection Law, Into A Weapon To Hinder Competition (C4SIF, 2010). On the shift from likelihood-of-confusion to dilution and the resulting anti-competitive uses.
- Copying, Patent Infringement, Copyright Infringement are not “Theft”, Stealing, Piracy, Plagiarism, Fraud, Contract Breach, Knocking Off, Ripping Off (C4SIF, 2025). IP concerns only the use of a pattern; it is unrelated to authorship, credit, source identification, or fraud.
- KOL207 | Patent, Copyright, and Trademark Are Not About Plagiarism, Theft, Fraud, or Contract (Kinsella on Liberty Podcast, 2016). Spoken treatment of the same distinctions, including the Rolex knock-off example.
- Mises, Rothbard, Hoppe: An Indispensable Framework, in Stephan Kinsella & Hans-Hermann Hoppe, eds., Rothbard at 100: A Tribute and Assessment (Papinian Press and Property and Freedom Society, 2026). Opening excursus on attribution, credit, and why ideas cannot be owned and need not be attributed as a matter of justice.
- “Reply to Van Dun: Non-Aggression and Title Transfer,” ch. 12 of Legal Foundations of a Free Society (Papinian Press, 2023). Response to Van Dun’s claim that source identification and the concept of fraud require trademark rights; ordinary communication suffices.
- “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability,” ch. 9 of Legal Foundations of a Free Society (Papinian Press, 2023). Explains why fraud is a form of aggression (theft by deception that vitiates consent).
- “A Libertarian Theory of Punishment and Rights,” ch. 5 of Legal Foundations of a Free Society (Papinian Press, 2023). Treatment of fraud as a crime within the broader theory of punishment and rights.
- The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression (StephanKinsella.com, 2006). Why mere lying or dishonesty is not fraud; fraud requires a victim whose property is taken without genuine consent.
- Fraud, Restitution, and Retaliation: The Libertarian Approach (StephanKinsella.com, 2009). Further analysis of fraud as a property violation and the appropriate remedies.
- Libertarian Party Trademark Assertions and Enforcement (C4SIF, 2025). Critique of the LNC’s trademark litigation against disaffiliated affiliates (Michigan, New Mexico, and related cases).
- Trademark versus Copyright and Patent, or: Is All IP Evil? (C4SIF, 2009). Emphasizes that the relevant right, if any, is the customer’s right against fraud, not a competitor’s monopoly over a mark, and that communication is sufficient for source identification.
