The Trademark Trial and Appeal Board has probably never in its illustrious history received so much publicity as it has over the last week, since issuing its opinion in the “Washington Redskins” case.
Too bad most people hear “Patent Office” and really don’t know what the Trademark Trial and Appeal Board is, or have ever heard of it.
Some news stories about the Redskins talked about the “Trademark Office.” Others talked about the “Patent and Trademark Office.” Many illustrious publications, including the Wall Street Journal and the Boston Globe, co-mingled “patent” for “trademark,” or even erred entirely, like the Journal’s front page story on Thursday, where a photo caption incorrectly referred to “patent protection.”
A lot of this confusion comes from the very name of the nation’s leading trademark authorities. The Patent and Trademark Office is in fact a single governmental body. The Patent and Trademark Office is part of the Commerce Department. There is a surprisingly small community of entities which own federal trademark registrations (likely well under 10% of all U.S. businesses). Apart from them, and even sometimes among them, the United States Patent and Trademark Office is often referred to simply as the “Patent Office.” That is the start of the confusion. The Patent Office holds jurisdiction over patents which are typically inventions for new machines, new chemical compounds or pharmaceuticals, improvements in electronics, or any number of other things. Trademarks are names, symbols, and indications of origin. Usually they are words and logos which comprise the overwhelming majority of registered trademarks. Within the Patent and Trademark Office, the branch that deals with trademarks is the Trademark Office. There is a separate Commissioner of Trademarks, and a separate administrative law board called the Trademark Trial and Appeal Board staffed by about two dozen administrative law judges. Their job is to decide appeals from within the Trademark Office regarding issues of what marks can or can’t be registered (like “Redskins”), and decide what marks cannot be registered because they would cause confusion among potential competitors.
The third major branch of intellectual property protection is copyright. The copyright registrations are governed by the Copyright Office, which is part of the Library of Congress.
The Patent Office side of the Patent and Trademark Office has its own administrative structure and its own appeal board. In point of fact, the patent part of the Patent and Trademark Office dwarfs the Trademark Office, in both revenue and staff size, by a factor of ten.
The world has changed since the first trademark was registered in the United States in 1870. The value of machines and inventions was always considered to contribute more to the economy than simple brand names. But it’s now been 20 years since reports were first released indicating that the estimated value of all the trademarks registered in the Trademark Office exceeded the value of all of the inventions patented in the Patent Office.
What is wrong with this picture, if the Trademark Office’s own name encourages public confusion over what is a patent and what is a trademark? Why not have our very own Patent and Trademark Office take the lead in ending this confusion? If we have a separate United States Trademark Office which examines and registers trademarks, it is a lot less likely that the media and the public will forever misunderstand there is a difference between the two.
From time to time, legislation has been proposed to peel away the Trademark Office from the Patent Office, but such views have generally fallen upon deaf ears. Canada, like some other countries, calls its patent and trademark office the Canadian Intellectual Property Office. That type of change would help, but would not assist too much in clarifying the difference between patents and trademarks.
Rebranding is like charity: it may best begin at home. Let’s start the chant: Free the Trademark Office!
This post originally appeared on Forbes