Trademark Registration Is Not a Right

Abstract

There is widespread lack of understanding of how far brands’ related trademarks depend on statutory registration. This legal innovation transformed the efficiency of advertising and made sponsorship, franchising, and international brands possible. It has resulted in mass-market products of consistent acceptable quality, which is often very high, but also in much of the harm now attributed to tobacco, alcohol, and junk foods. Public control of advertising for such products has proved difficult because firms in these industries can rely on constitutional rights to free speech or to property. Because trademark registration is not a right but a privilege granted for certain public objectives, withdrawing it for products that do not contribute to these objectives could escape such objections. It would greatly reduce the effectiveness of whatever advertising needs to be controlled, without interfering in any way with freedom to smoke, drink, overeat—or advertise.