Record TM filings at the USPTO—but do they conceal a darker picture?
Amid the turmoil wrought by the COVID-19 pandemic, the US Patent and Trademark Office (USPTO) has been experiencing another unexpected upheaval—an unparalleled growth in the number of trademark applications.
According to IP data firm Clarivate, trademark filing activity at the USPTO has been growing by 10% per month since April. In a speech at the Intellectual Property Owners Association’s 2020 Virtual Annual Meeting last month, USPTO director Andrei Iancu revealed that August was the office’s biggest filing month yet, with 76,400 classes.
Meanwhile, the office is on track to file more than 700,000 classes for the year, compared to 673,233 in 2019. According to Clarivate, Chinese applicants accounted for 30% of all US trademark applications; in September this soared to 43%.
At first glance, this is excellent news for the US. According to the USPTO, while patent filings tend to be a lagging indicator of economic health, trademark applications are more closely correlated with economic activity.
Iancu noted: “This year, trademark filings at the USPTO have exhibited a healthy V-shaped recovery ... moving in parallel with the general economic recovery we are experiencing as a nation.”
But look closer, and the picture gets increasingly murky and complex. Some have begun to question whether this increase, nearly half of which is driven by applicants from China, will ultimately erode the quality of trademarks.
Bucking the global trend
“On the face of it, this trend is surprising,” says Robert Reading, director, government and content, IP group, at Clarivate. “At the moment, most countries are in an uncertain place economically, and trademark filings usually reflect this.
“In Europe in particular, we saw a big fall with trademark applications decreasing in March and April. The US, however, has been very stable and steady. It didn’t have a COVID-19 dip, which obviously leads us to ask why,” Reading says.
The febrile political and social situation in the US this year is one explanation for the surge.
“The pandemic, quarantine, social justice concerns, racial inequities, elections—everything that has occurred in 2020—have resulted in an uptick of filings incorporating ‘COVID-19’, ‘Black Lives Matter’, ‘social distancing’, ‘2020’, ‘vote’, and other keywords emblematic of these times,” says Purvi Patel Albers, partner at Haynes and Boone.
A complex picture
This trend could forecast unprecedented challenges to the traditional role and perception of brands and trademarks. As Reading notes, for more than 100 years it has been considered good practice for brand owners to create a memorable, easy-to-pronounce name, but online commerce is challenging this norm.
As online retail platforms including Amazon and Alibaba increasingly favour sellers with registered trademarks in a bid to tackle counterfeiting, some sellers have realised that random letters are unlikely to collide with an existing trademark and are a relatively safe investment.
“Vendors just need to tick a box to file a US trademark and it costs them a few hundred dollars. Some of the marks are nonsense, just random letters, but they meet the criteria. It’s all legitimate, but it’s a weird way of using trademarks—to get past a hurdle on an online platform,” says Reading.
