Last updated on June 10th, 2020
What’s behind the rise in trademark applications? Some blame China, but I think there’s more to it. And why and how are so many questionable trademarks registered?
At the heart of it, trademarks should protect consumers from counterfeit products; instead, trademark trolling and questionable trademarks limit competition and innovation. Why are so many questionable applications filed? And how are so many novelty expressions and niches getting registered as brands?
Why So Many Questionable Trademark Applications
The steady growth of Amazon’s third-party selling platforms will likely lead to an exponential increase in the number of frivolous trademark applications submitted to USPTO. These will come from three main sources:
- Trademark trolls trying to gain a monopoly on trending expressions and keywords;
- Attorneys and other experts encouraging frivolous trademark registration directly or via misinformation;
- Sellers who submit ineligible applications to protect themselves.
Think about it. Over seventy thousand creatives on Merch By Amazon alone. How many of them understand the purpose of a trademark? Add all the Etsy sellers and KDP participants (not just self-published authors, but journal designers, blank book producers, and oh so many other niches!) Oops, don’t leave out the independent websites selling stamped jewelry, stickers, and so on.
Trying to imagine how many sellers are included in the print on demand industry brings a favorite Bible verse to mind: Genesis 30:11.
What’s that? You don’t recall it? Here it is:
And Leah said, A troop cometh: and she called his name Gad.Genesis 30:11 (KJV)
There’s a great big troop of online sellers who think trademark is for protecting their original novelty slogan.
How Faulty Trademarks Are Possible… and Likely!
Here’s why many ineligible applications will be approved in error:
- The current US trademark system is biased in favor of faulty registrations;
- Trademark trolls exploit known loopholes;
- Most sellers — through ignorance or apathy — refuse to get involved. Worse yet, many file ineligible applications themselves!
The result? Our US economy is being bottlenecked. Small business owners are limited in what they are able to create by the threat of bogus IP infringement claims.
USPTO now requires an attorney to prepare the trademark application. Sigh. If only it were that easy. Most attorneys appear to be ignorant of how to apply the Lanham Act to the print on demand industry.
USPTO’s top concern is speedy registration of quality trademarks. From a small business perspective, this is a good thing. Who wants to invest thousands in bringing a product to market only to be forced to rebrand it later?
But this noble goal means sometimes examination quality suffers. My analysis of marks held by several well-known trolls found that most had the same 2-4 attorneys assigned to their applications (12 and 50 questionable trademarks each). If a troll succeeds in getting one frivolous registration, they’re likely to get additional ones even easier due to the Halo Effect.
There are other biases, such as low requirements for Intent to Use or Statement of Use.
Trademark trolls and their savvy attorneys can often be identified by the loopholes they squeeze through:
- Fake or mockup specimens
- Incomplete specimens (showing only part of a product)
- Use of an unusual class in conjunction with an otherwise widely used expression. (See my updated post about the Trap Worldwide applications for Mamabear, bride, etc. for IC 035 online stores)
The biases and loopholes at USPTO are important pieces of the puzzle. But the biggest factor in so many frivolous marks being registered is sellers who are either part of the problem themselves, or who see the problem and refuse to get involved.
We need to do what we CAN do to fix a broken system. USPTO is working on improving their process, and has made great strides. But without our participation, this problem will only get worse.