Are We Running out of Trademarks? Evidence of Trademark Depletion at the U.s. Patent and Trademark Office

Barton Beebe (New York University School of Law)
Jeanne Fromer (New York University School of Law)

Abstract: American trademark law has long operated on the assumption that there exists an inexhaustible supply of possible trademarks. With respect to word marks in particular, conventional wisdom has assumed that we will always enjoy a surplus of preexisting words available for exploitation as trademarks, and that in any case, trademark adopters will always be able simply to coin new words, the supply of which is assumed to be effectively infinite. In this paper, we present empirical evidence that fundamentally challenges these assumptions. We use the U.S. PTO's recently released Trademark Case Files Dataset, consisting of information on some 7.4 million trademark applications filed at the PTO between 1870 and 2014, to show the surprisingly high proportion of English words already registered as trademarks in the U.S. and the limited availability of possible coinages not already identical or similar to registered word marks. We also demonstrate the growing complexity of registered trademarks, such as through longer word marks, more word marks consisting of multiple words, and more “fanciful” (i.e., coined) word marks. With respect to surnames in particular, we reveal the remarkable proportion of frequently used surnames that are already claimed as trademarks, as well as the proportion of common numbers and colors that are already claimed. Finally, using an original dataset consisting of all 1.7 million administrative Office Actions issued by the U.S. PTO from 2003 through 2014, we show the degree to which trademark depletion is driving the PTO’s increasing rates of refusal to approve trademark applications for publication and registration. The paper explores the implications for trademark law and policy of trademark congestion and depletion.