Solutions in Search of a Problem: The Trademark Register Clogged?

Commentators have debated the question of whether there are too many trademarks.  Are we going to end up in a situation where there just are not enough good trademarks left, particularly wordmarks?  Some would argue that there is an inexhaustible supply of potential trademarks, particularly when considered with words and designs in combination.  A recent Wall Street Journal article asserts that U.S. intellectual property officials are concerned about a large number of applications filed in the United States by Chinese companies and citizens.  Apparently, part of the concern is with fraudulent applications. 

One of the curbs on excessive use of trademarks in the United States is the use requirement.  For most filings in the United States, there must be a use--or eventually a use with an intent to use based application.  Interestingly, CompuMark has released a survey which states that China will become the leader in trademark filings domestically and in the world by 2020.  According to CompuMark, China has filed "nearly 120,000 foreign trademark applications in 2017."  And, the number of trademark applications in the U.S. by Chinese companies or individuals has increased by 800% since 2014.  The Chinese trademark registry now has "over 5 million new trademark applications in 2017" and sixty percent of the trademark registrations in the world are in China.  In the U.S., trademark registrations stay in effect for a basic ten year term after the first five years.  

Let's assume there is a problem.  The problem is there aren't enough good trademarks for legitimate businesses and there's a potential for hold-up of legitimate businesses by "weak" marks.  I suppose another related problem is the increase in search costs due to avoiding a massive number of marks.  Some of our solutions could include increasing filing fees and maintenance fees.  Another solution is shortening the time periods for requiring fees.  The U.S. has very long terms.  We could shorten them to two to three years.  We could increase penalties for the filing of fraudulent marks, including increased penalties for the US attorney who files the marks.  We could lower the costs for challenging existing marks.  We could also create a way to dismiss spurious suits for trademark infringement early and penalize over-enforcement through cease and desist letters.  Many of these solutions have been proposed.  Is there a problem?  

The Deft Touch: Humor to Protect Trademarks

As every competent trademark attorney knows: beware sending a cease and desist letter.  There are many strategic reasons for care: forum selection; admitting a likelihood of confusion; and souring a potential profitable commercial relationship.  One important consideration is appearing to be a “trademark bully” with an overreaching claim—particularly against a small company and when free speech interests may be involved.  In the days of the Internet, you don't want your client portrayed as a "bully."  Some of my favorite cease and desist letters, include the Jack Daniels cease and desist letter and the recent Netflix cease and desist letter.  The recent (relatively hilarious) video by Velcro is perhaps the funniest educational video about genericide and a brand I’ve seen.  It is truly worth a watch.  I do have to say that I didn’t even know Velcro was a brand until now.  My apologies for my poor trademark usage.   

Keeping Tabs on “Patent Trolls”: "Trolling Effects"

The Electronic Frontier Foundation recently released its “Trolling Effects” website.  The purpose of the website is to collect information, specifically cease and desist letters [C&D letters] sent by “patent trolls,” and provide a “one-stop shop” for resources concerning “patent trolls” and their impact on the patent system.  Unlike the somewhat similar Chilling Effects Clearinghouse website, which collects C&D letters across the IP disciplines, but particularly copyright C&D letters, “Trolling Effects” is specifically aimed at “patent trolls.” 

The Chilling Effects Clearinghouse website, in addition to its database of C&D letters, provides advice concerning intellectual property law for folks who receive C&D letters and offers a “weather report” on the chilling effect of intellectual property law enforcement on the Internet.  Notably, the Chilling Effects Clearinghouse website has provided a source of C&D letters that allow interested parties to find potential abusive cease and desist letters to “shame” intellectual property owners who may attempt to stop lawful activity through overreaching claims.  The “Trolling Effects” website is designed to help figure out who exactly are the “patent trolls.”  The blog at the website states:

The new site will gather information that's usually kept secret and put it to two important uses:

1. Give those facing troll threats information about the specific threats (including who is really sending them), along with general information about patent law and the system that might help them navigate the legal process and better understand their options.
2. Collect sorely needed data for journalists, academics, and policy makers, helping them better understand the scope of the patent troll problem and allowing them to make a better case for real reform.

In a very short period of time, the website has already collected a number of C&D letters.   Any opinions on how effective the Chilling Effects Clearinghouse website has been?   Will “Trolling Effects” be as or more effective?