The Role of Creativity in Trademark Law

Abstract

Trademark law - unlike patent and copyright law - is not structured to reward creators for producing particular content. That is unsurprising because trademark law and theory is significantly different than that of patent and copyright. Nonetheless, there are critical ways in which trademark law - rewarding marks’ creators. This underappreciated current of incentive to be creative courses through trademark law in ways that complement trademark law’s basic purposes. At the same time, however, trademark law’s drive to reward creativity has also likely helped justify its expansion in ways unmoored from core trademark theory.

Keywords: trademark, creativity, distinctive marks, goodwill, good will