Two-Tiered Trademark

Abstract

Today, we have a two-tiered trademark system. In the top tier, both parties can afford to litigate. In the lower tier, only one party can. This two-tiered system has arisen over the last century because courts refused to follow the law. Faced with trademark law that led to seemingly unjust outcomes in the case before them, courts rewrote trademark law. When those initial rewrites led to different sorts of seeming injustice as cases continued to arise, courts rewrote trademark law again and again. Moreover, judges rewrote trademark law not as part of any systemic and coherent plan for trademark law, but through ad hoc decision-making attempting to achieve what particular judges in particular cases perceived as justice for the particular parties before them. The net result has been a sharp increase in the complexity and uncertainty associated with trademark law, and the expense of resolving trademark disputes. As a result, many entities can no longer afford to participate in the trademark system at all. They can afford neither to defend themselves against overreaching assertions of trademark infringement nor to assert their own trademark rights against even straightforward acts of infringement. For a party who cannot afford the high cost of trademark litigation, when a dispute arises, the party loses. The party loses not because justice or some version of it requires that result. Rather, the party loses because it cannot afford the increasingly high cost of trademark litigation. To remedy this situation, I, like others recently, call for a return to simpler rules in trademark law and to an increased reliance on the registration system as a less expensive means to resolve trademark disputes.