An Empirical Study of Gender and Race in Trademark Prosecution

Abstract

This Article is the first to empirically analyze whether trademark prosecution reflects the systematic under-representation of women and minorities that has been documented for both patent and copyright prosecution. To explore this significant measure of entrepreneurial activity, we compared demographic information with 1.2 million trademark applications filed with the United States Patent and Trademark Office over thirty years. We found that trademark data showed significant differences from the other two federal IP regimes. While women and minorities have been underrepresented in the trademark applicant pool historically, the disparity is decreasing at a rate not seen in other IP registration systems. Our analysis also reveals that women regularly secure trademark registrations at a higher rate than men, and not all racial minorities are underrepresented in the trademark applicant population. Trademark registration is an important measure of entrepreneurial activity and progress in business, education, and the arts. While recent work has significantly advanced our understanding of trademark prosecution, no published studies consider the race and gender of trademark applicants. By filling that void, this article substantially contributes to our understanding of minority intellectual property ownership and provides a new foundation for policy shifts and further research to assure that intellectual property ownership paths, theory, law, and reform are grounded in equity.