Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.
Trademark Registrations Are Important, but Not the Way Many Markholders Think
In my high school “health and guidance” class, I was taught that you can’t sober up a drunk with coffee. All you get, I was told, was a wide-awake drunk. Although now stimulated, the guy’s motor skills were just as impaired as before. I don’t know if that’s still the received wisdom—this was the 1980’s, after all—but it’s a lesson I took to heart. Coffee doesn’t sober up a drunk, and lipstick doesn’t make a pig pretty.
And a registration doesn’t make a trademark strong. If you manage to register a weak trademark, all you get is a registered weak trademark. Trademark registrations don’t generate trademarks out of thin air. They make already-existing trademarks stronger. They are force multipliers. If your trademark is strong, then a registration will make it considerably stronger. But just as multiplying a tiny number still results in another (slightly larger) tiny number, a registration doesn’t add that much to weak trademarks.
The Brawny Poetry of Trademarks
What makes a trademark strong, if not registration? Trademark strength has two ingredients, and you (the trademark owner) control both of them: inherent distinctiveness and goodwill. Goodwill arises from consumers’ recognition…