Automating Abercrombie: Machine‐learning trademark distinctiveness

Abstract Trademark law protects marks to enable firms to signal their products' qualities to consumers. To qualify for protection, a mark must be able to identify and distinguish goods. US courts typically locate a mark on a “spectrum of distinctiveness”—known as the Abercrombie spectrum—that categorizes marks as fanciful, arbitrary, or suggestive, and thus as “inherently distinctive,” or as descriptive or generic, and thus as not inherently distinctive. This article explores whether locating trademarks on the Abercrombie spectrum can be automated using current natural‐language processing techniques. Using about 1.5 million US trademark registrations between 2012 and 2019 as well as 2.2 million related USPTO office actions, the article presents a machine‐learning model that learns semantic features of trademark applications and predicts whether a mark is inherently distinctive. Our model can predict trademark actions with 86% accuracy overall, and it can identify subsets of trademark applications where it is highly certain in its predictions of distinctiveness. Using an eXplainable AI (XAI) algorithm, we further analyze which features in trademark applications drive our model's predictions. We then explore the practical and normative implications of our approach. On a practical level, we outline a decision‐support system that could, as a “robot trademark clerk,” assist trademark experts in their determination of a trademark's distinctiveness. Such a system could also help trademark experts understand which features of a trademark application contribute the most toward a trademark's distinctiveness. On a theoretical level, we discuss the normative limits of the Abercrombie spectrum and propose to move beyond Abercrombie for trademarks whose distinctiveness is uncertain. We discuss how machine‐learning projects in the law not only inform us about the aspects of the legal system that may be automated in the future, but also force us to tackle normative tradeoffs that may be invisible otherwise.