Sometimes it's okay if you can't register your trademark.  Really.  I know there are many practitioners who would never admit that to their clients, but I'm not one of them.  There are perfectly legitimate terms that may function as trademarks but which the PTO will never grant registration, end of story.  But why should that prevent the use of such a mark?

Rebecca Tushnet highlights the registrability paradox in this piece about "RePeat: North America's Peat Replacement."  Her focus of course is on whether use of the mark RePeat constitutes false advertising because it may suggest that the product contains or is otherwise related to peat, an absolutely legitimate inquiry and a discussion I'll save for a romantic evening with my husband, another false advertising expert.  (Do we know how to live or what?)

My focus, rather, is on the mark itself, which Professor Tushnet does laud for its "cleverness."  In my book, this is an outstanding mark: indeed clever, suggestive, and evocative.   And yet I completely agree that the mark is unregistrable as deceptively misdescriptive.  Still, it's got great potential to be a distinctive identifier of the product, again, ignoring 43(b) concerns.  And so why should it matter if they can't get the registration?  With enough use, enforcement and recognition, you still have a valid trademark.  Bring it on, I'll entertain competing points of view.

Plus, it makes me think of one of the most gut-busting jokes I knew when I was a kid: Pete and Repeat were walking down the street.  Pete fell down.  Who was left?  Repeat.  Okay, Pete and Repeat were walking down the street . . .