James Nurton has published an interesting article for IPWatchdog that focuses our attention on one potential problem – a future trademark names depletion in the US and the EU.
According to professor Barton Beebe of NYU School of Law, 75% of English words in daily use are already registered as trademarks in the US as well as 55% of common surnames.
When it comes to the European Union, the situation is even more concerning. The professor’s data shows that 77% of the 20,000 most common English words are registered as trademarks.
In some classes of goods and services, the situation is even worse. For example, in class 25 – clothes, shoes, etc. 80% of common words are registered.
This trend is similar for other languages as French, Italian, Spanish.
According to Beebe, this can be a serious challenge for the trademark registration process in this century. The problem is that in the presence of “trademark crowding” the cost for registration of new trademarks will arise because the registration process will be accompanied by more oppositions from owners of earlier rights. And at some moment new registration can be really difficult.
There are different solutions to this problem. For instance, Patent Offices can do an examination of whether the applied-for trademarks are identical or similar to already registered signs for the same Nice classes. The EUIPO doesn’t do that whereas there are such checks in other jurisdictions. The Offices can start requiring for narrow specification of goods and services limiting the trademark protection scope. Another option is the requirement for trademark use to be examined by the Patent Offices ex officio. For example, you need to prove trademark use every 5 years in the US otherwise the Patent Office will cancel the trademark registration.
Apart from this procedure and legislation options, new technologies can be of help. One immediate example is blockchain. What is typical for this technology is the fact that it offers uniqueness. A blockchain record is immutable. This corresponds with one of the trademark characteristics, it is a source of trade origin. Trademarks are valid to the extent the mark is used in the market in the way how it is registered.
So blockchain can be helpful in the future but what I mean is not this technology to be used for proving trademark use of fight against counterfeit goods. Probably in the future, the blockchain coding signs can be trademarks themselves identified by consumers through different technical tools, for example.
This topic is quite interesting. What is for sure is the fact that trademark registration becomes more and more complex. There are millions of registered marks all around the world and every new application can face oppositions or cancelations by owners of already registered signs.
That’s why the application process must be preceded by a good trademark clearance search and analyses that to show all possible risks.