Professor Jeanne Fromer outlined the risks of a dwindling supply of trademarks in her testimony on July 18 before the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet.
In the hearing, which focused on trademark depletion and clutter, Fromer cited a recent study of almost 7 million trademark applications that she co-authored with Barton Beebe, John M. Desmarais Professor of Intellectual Property Law. Their article, “Are We Running Out of Trademarks? An Empirical Study of Trademark Depletion and Congestion," appeared in Harvard Law Review in February 2018.
“Although trademark law has operated on the assumption that there exists an inexhaustible supply of trademarks, the empirical results we report confirm the opposite,” Fromer said. “It is becoming increasingly difficult for new businesses to find a trademark that is competitively effective but that has not yet been claimed by another business.”
“This problem is particularly acute for small businesses, which typically lack the sophistication and resources to find unclaimed, competitively effective marks and prosecute those marks to registration,” she added.
Exacerbating the scarcity of available marks, Fromer said, is a rise in trademark applications that contain fraudulent statements of use. “When these applications are allowed to proceed to registration, they contribute to clutter on the register,” she said. “It is important to declutter the trademark register, both to abate rates of trademark depletion and to maintain the register’s integrity.”
Fromer recommended a mix of reforms, including removal of marks that are not currently in use from the US Patent and Trademark Office’s (PTO) register of trademarks; implementation of less costly processes for reexamination, cancellation, or opposition of trademarks; and adoption by the PTO of a lower fraud standard.
Watch video of Professor Jeanne Fromer’s testimony:
Posted August 9, 2019