The Role of Creativity in Granting and Limiting Trademark Rights

Abstract

Abstract This chapter explores the role of creativity in trademark law’s grant and limitation of rights. Trademark law—unlike patent and copyright law, its intellectual property cousins—is not structured to reward creators for producing particular content. That is unsurprising because trademark law and theory is significantly different than that of patent and copyright. As the U.S. Supreme Court has remarked, trademark law was “not designed to protect originality or creativity,” while patent and copyright law were. Nonetheless, there are critical ways in which trademark law, like patent and copyright law, seeks to encourage creative activity, even without directly rewarding marks’ creators. At the same time, trademark law discourages certain types of activity thought to lack creativity, which are deemed to be less deserving of protection. This underappreciated current of incentive to be creative in certain ways courses through trademark law in ways that complement trademark law’s basic purposes. At the same time, however, trademark law has a particular vision of creativity that might or might not align with society’s. In addition, the law’s drive to reward creativity has also paradoxically helped justify its expansion in certain ways unmoored from core trademark theory.