Top Trademark Trends of 2016

Looking back on 2016 from a trademark perspective, the year rather quiet compared to 2015 and what is in store for 2017. With a lot on tap for next year from the USPTO and the Supreme Court in the world of trademarks, 2016 saw the continued trends of application filing increases and sleeker logos from companies for a more mobile world.

US trademark filings increase again. For the seventh year in a row, the number of trademark application filings submitted to the US Patent and Trademark Office (“USPTO”) has grown. The increase may have slowed from last year’s surge of nearly ten percent, but the trend of more businesses investing more to create and protect brands continued nonetheless. Given the consistent filing rise over the last few years, the overall number of active US trademark registrations sits at an all-time high, nearly 2.2 million.

Presidential election themes generate scores of trademark filings. November’s election generated hundreds of trademark filings. From “Make America …. Again” to “Make …. Great Again,” from “Deplorables” to “Bernie” and “Walls” to “Putin,” and more than one hundred filings featuring the term “Trump,”election themes and catchphrases provided the basis for many application filings. When the new administration takes office in January, two areas could affect trademark owners the most: USPTO operations and international trade deals that include trademark and intellectual property provisions.

Changes on tap for the USPTO. In 2017, the USPTO will see several significant changes besides a new Director with the new administration. There are some fee changes on tap that will primarily affect filers who use paper instead of the USPTO’s electronic systems. The Trademark Trial and Appeal Board has a new rules package that takes effect mid-January and provides for testimony by affidavit, electronic service of documents, and some other procedural changes intended to reduce the costs and time of litigation. Other rule changes will tweak the declaration format used by signatories.

Supreme Court to decide whether the USPTO’s refusal to register “disparaging” trademarks is unconstitutional. In December of 2015, the Court of Appeals for the Federal Circuit (“CAFC”) held that the USPTO was wrong to refuse to register the name of a band, The Slants, on grounds that the name is disparaging. The CAFC held that the section of the Lanham Act trademark statutebarring registration of disparaging terms, Section 2(a),  violates the First Amendment’s protections for private speech. The Supreme Court will hear the case in January, and the outcome will likely affect the years-long saga involving the Washington Redskins trademarks as well.

Logos get sleeker. Instagram and Uber unveiled major logo redesigns. Taco Bell, MasterCard, Subway, NASCAR, and Netflix tweaked their logos. Most of these changes represented a shift towards simplicity and sleekness, as such designs that are easier to read on small screens. As more brand interactions are online and mobile, look for other brands to continue the trend of simplifying their logos next year as well. 

Scams targeting trademark owners proliferate. The number of bogus solicitations, questionable offers, and outright scams targeting trademark owners continued to expand, with slow progress in cracking down on the operators. While the number of these offerings seems to keep growing, in 2016 several individuals in California were indicted and charged with money laundering and other crimes in connection with a scheme to launder the proceeds of a mass mailing scam targeting holders of U.S. trademarks. And in New Zealand, after efforts by the New Zealand Commerce Commission, refunds of over NZ$600,000 were made to individuals taken in an online trademark directory scam from ‘TM Publisher.’

On tap for 2017. In many ways, 2016 was a static year in trademarks between 2015, which featured a major Supreme Court trademark decision, and 2017, which will feature another top court case, as well as the implementation of several new sets of rules and fees from the TTAB and USPTO. With the contentious presidential election in the rearview mirror, I believe that 2017 will also bring significant growth in the number of trademark filings and trademark disputes.

© 2016 Erik M. Pelton & Associates, PLLC. All Rights Reserved.