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In Alan Jay Lerner’s lyric, Professor Henry Higgins laments: "Why can’t a woman be more like a man?" Professor Rebecca Tushnet’s provocative article in effect urges that a U.S. trademark should be more like a European Union trademark, at least with respect to the relationship of registration to substantive protection. The article convincingly exposes the current incoherence in U.S. trademark law – a hybrid between “procedural” and “substantive” registration regimes, in which the traditional emphasis on use-based trademark rights undermines the business-planning benefits that flow from registration.

Before elaborating on the similarities between Tushnet’s suggested reforms of U.S. trademark law and current EU trademark law, this Response will articulate the premises underlying use-based and registration-based systems, premises implicit in Tushnet’s arguments, but which may not be apparent to readers unfamiliar with trademark law. This Response will then address ways in which the EU trademark registration system offers a model to implement some of Tushnet’s prescriptions.


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