Prohibiting non-arbitrary trademarks

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In my post Trademark Insanity I came close to advocating the abolition of non-arbitrary trademarks. It turns out this proposal has been made in all seriousness by Lisa P. Ramsey in her paper Descriptive Trademarks and the First Amendment. Check it out.


  1. Tom said,

    August 6, 2008 @ 1:20 am

    The UK system works quite well in allowing only 'descriptive' trademarks which aren't actually descriptive. So, if you wanted to trademark Arctic Bananas you could do so, but you wouldn't be allowed Brazilian Bananas™.

    Of course, we also have a trademarks office that does proper checking of trademarks, which helps. Our patent office, too – I'm continually surprised by how often the USPTO seems to let through patents that are clearly too vague, or lack novelty, and just let the courts sort it out.

  2. Joe said,

    August 6, 2008 @ 3:46 am

    Honestly, I agree with that notion myself. IP laws have gone too far and are due for correction. Obvious patents (and they've patented storing your "paper or plastic?" preference in a database, as well as crust-less PB&J sandwiches) are only the tip of the iceberg. Though it is fun to laugh at the time someone put out a patent for the wheel in Australia. Granted, that was to make a point about how bad things were, but still! I wonder if he tried to patent fire, afterwords?

  3. Jon Weinberg said,

    August 6, 2008 @ 12:30 pm

    You appeared to suggest in your earlier post, Bill, that only coined words ("artificial creations") could be trademarks. LPR's suggestion is much more limited. She's OK with trademarks that, in the lingo, are either "arbitrary" (like Apple Computers") or "suggestive" (like "Greyhound Bus"). Where she draws the line is at "descriptive" trademarks — that is, trademarks that actually describe some aspect of the product, but which are registrable because the public understands them to identify the product as coming from some particular manufacturer or source. "U.S. Steel" is an example. Literally, those words just refer to steel from the United States, but the mark is registrable under current law because the public understands it to refer to the products of a *particular* steel company. It's that category of marks that the Ramsey article attacked.

  4. John Cowan said,

    August 6, 2008 @ 1:00 pm

    The USPTO believes that it's their mission to help people patent things, and measures its performance by how many patents it grants. It's hardly surprising that they let through prior-art or vague patents — it's their job as they see it to only stop the most outrageous.

  5. Bill Poser said,

    August 6, 2008 @ 3:34 pm

    Jon Weinberg,

    Yes, you're right, Ramsey's proposal is narrower.


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