Recommended Reading: Professors Beebe and Fromer, "Are We Running Out of Trademarks?"

"Conventional wisdom" says that the number of available trademarks is infinite, or nearly so. Professors Barton Beebe and Jeanne C. Fromer of New York University School of Law challenge that assertion in their enlightening article: Are We Running Out Of Trademarks: An Empirical Study of Trademark Depletion and Congestion, 131 Harv. Law Rev. 948 (February 2018). [pdf here].

American trademark law has long operated on the assumption that there exists an inexhaustible supply of unclaimed trademarks that are at least as competitively effective as those already claimed. This core empirical assumption underpins nearly every aspect of trademark law and policy. This Article presents empirical evidence showing that this conventional wisdom is wrong. The supply of competitively effective trademarks is, in fact, exhaustible and has already reached severe levels of what we term trademark depletion and trademark congestion.  * * *  These data show that rates of word-mark depletion and congestion are increasing and have reached chronic levels, particularly in certain important economic sectors. The data further show that new trademark applicants are increasingly being forced to resort to second-best, less competitively effective marks. Yet registration refusal rates continue to rise. The result is that the ecology of the trademark system is breaking down, with mounting barriers to entry, increasing consumer search costs, and an eroding public domain. In light of our empirical findings, we propose a mix of reforms to trademark law that will help to preserve the proper functioning of the trademark system and further its core purposes of promoting competition and enhancing consumer welfare.

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TTABlog comment: Should we take some small comfort from the fact that Matal v. Tam and In re Brunetti have freed up more words for registration as trademarks? On the other hand, Bayer v. Belmora says that one need not own a trademark in the United States to bring a Section 43(a) claim (Bayer owned the mark FLANAX in Mexico). Does that further narrow (slightly) the number of marks available in this country?

P.S. I'm sorry to see the Professors use the terms "trademark" and "trademarking" as verbs, instead of "register" and "registering."

Text Copyright John L. Welch 2018.