Sometimes I think we’re getting trademarks all wrong. We focus a lot of attention on squeaky wheels: who’s suing whom, how large damages awards are, who’s behaving like a bully. What we don’t seem to spend much time talking about is distinctiveness: what it is, how it changes, how cool it is, how to achieve it. Yet, as I read it, distinctiveness is what the Lanham Act is all about. As the convoluted language of § 2 tells us: “No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless. . . .” Based on the language and structure of the statute, it would appear that the first thing the Lanham Act wants you to think about with regard to trademarks is distinctiveness.
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