Which body of law do you find less clear — patent law or trademark law?

During the oral argument for the recent Converse/Chuck Taylor case, Judge Dyk was asking appellant’s counsel about a nuance of the test for secondary meaning under trademark law.  It caused Judge Dyk to note that he thought patent law sometimes seems pretty clear when compared to some of the spongy concepts in trademark law.  That prompted laughter from the courtroom, as did Judge O’Malley’s follow-on comment that it was a scary thought.  You can listen to those comments here:

 

 

Excluding patent eligibility from patent law, which body of law do you think is less clear -- patent law or trademark law?

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Happy Thanksgiving!

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