2021, Book Chapter: "Trademark registration is useful in providing a record of when rights were acquired and over what symbols, it also provinces constructive notice of registrant’s rights. Registration presents issues when underlying rights are expanded through assertions in litigation, even when the rights are narrow on paper. A number of reforms to the registration process could address these problems: “use requirements, heightened distinctiveness requirements, and a version of prosecution history estoppel to discourage registrant manipulation of the difference between the rights-granting entity (the PTO) and the rights-enforcing entity (the courts).” The interdependency of rights and remedies necessarily means that any reform to the registration process needs to consider a balance of infringement and counterfeit deterrence with competition and market entry. As it stands, the current registration system focuses heavily on competition and market entry, with less thought given to infringement and counterfeit deterrence. This chapter explores ways to make registration beneficial for both the consumers and producers."
Non-HKS Author Website - Rebecca Tushnet