Are we running out of trade marks?


By Rachel Pearse

A recent study in America has highlighted the difficulties caused by the exhaustive supply of "good" trade marks. The report suggests that "applicants are increasingly being forced to resort to second-best, less competitive marks, and the trademark system is growing increasingly—perhaps inordinately—crowded, noisy and complex."

Trade marks are a territorial monopoly right and in the UK, trade marks can be held for a period of 5 years without use before they become vulnerable to invalidity for non-use and 10 years before they need to be renewed. This is a significant period of time for a business to be waiting on the side line to see if their chosen or ideal brand may once again come up for grabs due to non-use or failure to renew the registration.

As the availability of "good" brands decreases (which is not a problem unique to the US), we will also see an increase in the number of third party trade mark oppositions at the UKIPO and EUIPO as applicants' marks become closer and more akin to those already registered.

As the study suggests, the number of registrations for portmanteaus trade marks which drop vowels e.g. "Flickr" and "Tumblr" or substitute letters e.g. "Lyft" are likely to increase. The difficulty with the latter two examples is that the aural similarity is identical with brands such as "Flicker", "Tumbler" and "Lift", which may already be registered and therein lies the problem for prior rights holders.

In light of the report's findings, if you've been toying with the idea of registering a new brand name, it may be worth speaking to us regarding trade mark clearance searches sooner rather than later to ensure that you secure your ideal brand before anyone else does.

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. With respect to word marks in particular, the conventional wisdom holds that we will always enjoy a surplus of preexisting words, and in any case trademark adopters can simply coin new words, the supply of which is thought to be effectively “infinite.”
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