The Likelihood of Exclusion: Economic Disparity in the United States Trademark System

The Likelihood of Exclusion: Economic Disparity in the United States Trademark System

Michael J. Choi

Trademarks are integral in the marketplace, serving as identifiers of the source of a business’s goods or services. Consumers rely on trademarks not only as source identifiers, but also as “quality guarantor[s] and consumer status symbol[s].” Entrepreneurs use trademarks to develop a brand and pursue opportunities for economic mobility. Although trademarks originally sprouted to protect consumers from fraud and counterfeit, the actual effects of modern trademark law severely overshadow these traditional purposes. Patterns in legislation and interpretations reveal a system of favoring the haves over the havenots, depriving have-nots of both offensive and defensive protections otherwise provided by trademark law.

The value of a trademark in modern day is the mark itself, rather than the brand it represents. Companies take just as much pride in their logos and brands as their actual products and services. As a personal property right, a trademark creates the duty to diligently manage and oversee these rights. However, overzealous trademark policing creates a hostile climate for the freedom of expression, the entrepreneurial spirit, and ultimately, a competitive and free-flowing marketplace. As a result, small businesses and other marginalized groups, often lacking the resources of large companies, are effectively excluded from the trademark system. 

This paper observes the trademark system, its evolving infrastructure, and how it contributes to the suppression of small businesses. Part I provides a brief overview of the developments in statutory trademark law and the trademark registration process. Part II discusses the expansion of trademark rights and the lack of legal recourse available for accused infringers. Both contribute to the economic disparity by enabling large businesses to over-enforce their rights against small businesses with impunity. This section also explores the trademark system’s suppression of minority groups and the materialization of recent case law and academic literature seeking to equalize this playing field. Part III suggests remedying these imbalances by reforming the trademark system and its jurisprudence, promoting large corporations’ ethical responsibilities as players in a global market, and providing trademark management guidelines and trademark anti-bullying advice for small businesses.

100 J. Pat. & Trademark Off. Soc’y 599(2019)

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