75 Am. U. L. Rev. F. 857 (2026).

Abstract

This Article highlights the central—and under-theorized—role that disclosure plays within trademark law. By loose analogy, the patent disclosure requirement is a cornerstone of patent law, embodying the “patent bargain” where an inventor must disclose their invention in exchange for a twenty-year monopoly. This quid pro quo is believed to stimulate the progress of science and technology, making patent disclosure the very pulse of the patent regime. However, the fundamental importance of disclosure in trademark law remains underexplored. Like patents, trademark law imposes a rigorous bargain—to obtain the enhanced rights granted by federal registration, trademark owners must first make significant disclosures throughout the registration process. This Article labels this exchange the “trademark bargain.”

A theory of trademark disclosure and its resulting bargain yields both descriptive and normative insights. The bargain theory reveals the strategic considerations of trademark owners regarding whether, how, and when to pursue trademark registration. While registration offers significant advantages, it also involves extensive disclosures that can expose trademark owners to increased scrutiny and competition. These disclosures serve broader interests by granting valuable information rights to the government, business community, and purchasing public. Yet trademark law has largely failed to design or communicate these disclosures with the public in mind. Considering trademark law’s goal of consumer protection, this Article argues that the purchasing public could benefit more from the trademark bargain, especially given the social and economic costs imposed by the trademark registration system. Accordingly, the U.S. Patent and Trademark Office should refine its various doctrines, enhance its related search engines and databases, and engage in messaging campaigns to present trademark disclosures in plain language for the public, such that the trademark bargain’s benefits are more equitably distributed.

* Associate Professor of Law, University of North Carolina School of Law. For insightful comments and conversations, many thanks to Barton Beebe, Graeme Dinwoodie, Jeanne Frommer, Deborah Gerhardt, Michael Goodyear, Mark Lemley, Jake Linford, Sari Mazzurco, Mark McKenna, Alexandra Roberts, Jennifer Rothman, Jeremy Sheff, Matthew Sipe, Rebecca Tushnet, and Christopher Yoo, as well as to participants at the 2025 Harvard/Penn/NYU Trademark Roundtable, the 2023 and 2024 Intellectual Property Scholars Conference (IPSC), and the 2023 Richmond Law Junior Faculty Forum. John Chambers provided superb research assistance and feedback. My sincere appreciation to the American University Law Review editors for their outstanding work. Constructive notice is hereby given that all remaining errors are mine.