A World Trademark Review study found that 81 per cent of the 1000 most common words in the English language are registered single-word trademarks. This is good news for those businesses who will benefit from the goodwill associated with brand recognition and visibility. But, with many trademarks too broad and forgettable, it can be challenging to identify a new brand that will differentiate from competitors and build a trusted brand name.
Are we running out of trademarks?
A name can make or break a brand and business owners need to look for something unique and memorable that won’t see them landed with a lawsuit. This is becoming increasingly difficult. Yet research has shown that a significant number of trademarks have been created purely for the purpose of protection. These marks remain registered and idle, creating a cluttering of non-use trademarks. The subsequent ‘trademark clutter’ decreases the choice available for applicants and increases the costs of searching and registering new marks.
The effect of trademark clutter is evident in the growth of complex product and brand names. For pharmaceutical products, there is a significant health risk attached to trademark clutter. If different drugs – with varying effects – have similar names, doctors or pharmacists can inadvertently prescribe the wrong drug. Medical journals have repeatedly reported instances of confusion deriving from similar brand names with between eight and 25 per cent of medication errors being attributed to name confusion.
An ongoing struggle
Trademark clutter isn’t solely affecting the pharmaceutical industry. For example, as the craft beer industry continues to grow and expand, craft brewers are running out of names, making it harder for new entrants. With such a crowded industry, brewers are now looking for inspiration from cities, iconic landscapes, even creatures!
In 2017, the United States Patent and Trademark Office (USPTO) began a ‘Post Registration Proof of Use Audit Program’. The programme promotes the accuracy and integrity of the trademark register by randomly selecting trademarks for review. Owners need to prove use of the selected trademarks. Any unused trademarks are removed from the register.
However, not all trademark offices are actively moving to counteract trademark clutter. Canada is introducing changes to its trademark system in 2019 that will liberalise procedures and instead make it easier to register trademarks.
Is there a solution?
To manage trademarks in an increasingly cluttered space, trademark teams need to understand the tools available to them, and choose applications that will benefit most from protection.
To find out more, come by my INTA Table Topic: Managing Trademarks Clutter in a Busy ‘Internet of Things’ World on Wednesday, May 23 from 1:15-3:15 pm where we will explore the key challenges of trademark clutter, and discuss potential solutions.