The trademark owner is actually in the trade. He is a part of the exchange.

I want to buy a bottle of Coca Cola from Coca Cola Corp. When I buy a dark liquid in a Coke bottle that is my intent.

Clearly Coca Cola is ready to sell me the product, the price is announced, etc.

But someone gets in the middle poses as Coca Cola and cuts in the middle of the exchange, takes my money and doesnt give me the real stuff.

Since trade would benefit both Coca Cola and me, the getting in the middle of the trade and frauding the me hurts both Coca Cola and me.

So Coca Cola has an incentive to protect its future free exchanges. And a whole lot more incentive than the customer. Since Coca Cola is specialized in beverage trade, unlike its customer who trade on many different products.

In trademark, the plaintiff is the owner of the trademark. He is clearly not the party defrauded when the defendant uses his trademark to sell goods to a third party.

Moreover, to prove trademark infringement, one must prove use of another’s mark in a way that is likely to cause consumer confusion–not fraud. There is no fraud standard in trademark causes of action.

But trademark violations are textbook cases of fraud.