An Empirical Study of Gender and Race in Trademark Prosecution

82 Pages Posted: 7 Nov 2020

See all articles by Miriam Marcowitz-Bitton

Miriam Marcowitz-Bitton

Bar-Ilan University - Faculty of Law

Deborah R. Gerhardt

University of North Carolina School of Law

W. Michael Schuster

University of Georgia - C. Herman and Mary Virginia Terry College of Business

Date Written: September 18, 2020

Abstract

This Article is the first to empirically analyze whether trademark prosecution reflects the systematic under-representation of women and minorities that has been documented for both patent and copyright prosecution. To explore this significant measure of entrepreneurial activity, we compared demographic information with 1.2 million trademark applications filed with the United States Patent and Trademark Office over thirty years. We found that trademark data showed significant differences from the other two federal IP regimes. While women and minorities have been underrepresented in the trademark applicant pool historically, the disparity is decreasing at a rate not seen in other IP registration systems. Our analysis also reveals that women regularly secure trademark registrations at a higher rate than men, and not all racial minorities are underrepresented in the trademark applicant population.

Trademark registration is an important measure of entrepreneurial activity and progress in business, education, and the arts. While recent work has significantly advanced our understanding of trademark prosecution, no published studies consider the race and gender of trademark applicants. By filling that void, this article substantially contributes to our understanding of minority intellectual property ownership and provides a new foundation for policy shifts and further research to assure that intellectual property ownership paths, theory, law, and reform are grounded in equity.

Keywords: trademark, race, gender, empirical, intellectual property, entrepreneur

Suggested Citation

Marcowitz-Bitton, Miriam and Gerhardt, Deborah R. and Schuster, W. Michael, An Empirical Study of Gender and Race in Trademark Prosecution (September 18, 2020). Southern California Law Review, Vol. 94, No. 6, Forthcoming, UNC Legal Studies Research Paper , Bar Ilan University Faculty of Law Research Paper No. 20-20, Available at SSRN: https://ssrn.com/abstract=3695008 or http://dx.doi.org/10.2139/ssrn.3695008

Miriam Marcowitz-Bitton

Bar-Ilan University - Faculty of Law ( email )

Ramat-Gan, 52900
Israel

Deborah R. Gerhardt (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919-962-7219 (Phone)
919-962-3375 (Fax)

HOME PAGE: http://www.law.unc.edu/faculty/directory/gerhardtdeborahr/default.aspx

W. Michael Schuster

University of Georgia - C. Herman and Mary Virginia Terry College of Business ( email )

Brooks Hall
Athens, GA 30602-6254
United States

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