Posted by Jonathan Adler:
Privatizing Trademarks:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1244303297
My soon-to-be-new colleague Irina Manta has recently posted her
article [1]"Privatizing Trademarks" (forthcoming in the Arizona Law
Review on SSRN. While I don't know much of anything about trademark
law, I generally like privatization and found the article interesting.
The abstract is below.
While trademarks are designed to promote a competitive and
productive marketplace, the current system of trademark
registration is run by the Patent & Trademark Office as a monopoly
of questionable productivity. The average time that it takes for
the Patent & Trademark Office to process a trademark application is
over a year, and as a result, trademark applicants risk investing
substantial sums of money into a mark to discover much later that
the Patent & Trademark Office will not register it. This Article
considers a possible solution - a system of privatized trademark
registration. The system would contain several features: 1)
Multiple "entities" serving as registrars: Various private entities
would compete with each other and register trademarks while sharing
one database for pending and registered trademarks. Market
mechanisms would thus encourage speedier and more effective
registrations. 2) Optional expedited process: Different entities
could employ price discrimination calibrated to the speed with
which a trademark applicant wants to use his mark. 3) Quality
control mechanisms: For example, to ensure the quality of the
registration process, a rating system would permit clients to
provide feedback after registration and years later. An entity
providing ineffective services or issuing trademarks that later
faced serious litigation would earn poor ratings while a reliable
entity would fare well. To explore the viability of trademark
privatization, the Article relies on both the theoretical
privatization literature and practical examples in which government
exclusivity has been removed from intellectual property (and other)
decision-making. By challenging assumptions about the status quo
surrounding the monopoly of the Patent & Trademark Office, the
Article seeks to open a more general discussion about improvements
to the existing system of trademark registration.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1225923
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