Private Law Theory

ABSTRACT
This Article identifies and theorizes the central – but underexamined – role of disclosure in trademark law. Drawing an analogy to the patent system’s well-known ‘patent bargain’, it argues that trademark law similarly operates through a ‘trademark bargain’, in which applicants exchange extensive disclosures for the enhanced rights of federal registration. This framework offers both descriptive and normative insights. It explains how disclosure obligations shape trademark owners’ strategic decisions about whether and how to register, while also highlighting the informational benefits these disclosures provide to regulators, competitors, and consumers. Yet trademark law has largely failed to design or communicate these disclosures with the public in mind. Given trademark law’s consumer protection goals, this Article argues that the purchasing public should receive greater benefit from the trademark bargain. It concludes by proposing reforms to the US Patent and Trademark Office’s doctrines, databases, and public-facing communications to make trademark disclosures more accessible, transparent, and socially valuable.

Marlan, Dustin, The Trademark Bargain: Registration as Disclosure (April 4, 2026), UNC Legal Studies Research Paper (forthcoming); 75 American University Law Review 101 (2026).