In this episode, Alexandra J. Roberts, Associate Professor of Law at the University of New Hampshire School of Law, discusses her article "Trademark Failure to Function," which will appear in the Iowa Law Review. Roberts begins by describing what trademarks are for and when they exist. She notes that a mark must be distinctive and be used as trademark in order to function as a trademark. But the Trademark Office and the courts tend to emphasize distinctiveness and de-emphasize use as a mark. She argues this is a problem, because it does not reflect how consumers actually experience marks, and suggests that distinctiveness and use should be measured together. Roberts is on Twitter at @lexlanham.

Keywords: trademarks, uspto, registration, distinctiveness, use, intellectual property, behavioral realism, marketing, advertising

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