If I were allowed to decide how the law should be, I would still allow actual damages against them, if any, in such a case. And I'd only allow their confusion as a concession, rather than allowing the good faith requirement to be meaningless.
They'd be much better off if they accepted the inevitable and learned how to provide value to their customers (like Steam, for example). I just don't actually expect them to do that.
As long as actual damage includes:
1) Attorney fees
2) Business disruption costs
3) The time I have to spend away from work to carry the suit forward (in other words, the longer they drag it out, the more the damages are)...
4) Interest on all the foregoing.....
They'd be much better off if they accepted the inevitable and learned how to provide value to their customers (like Steam, for example). I just don't actually expect them to do that.