A new report from the Department of Commerce, the agency of which the USPTO is a part, was released last week following its ” audit of the United States Patent and trademark Office’s (USPTO’s) efforts to improve the accuracy of the trademark register” that began in April of 2020.
The report issued on August 11, 2021 (OIG-21-033-A) is entitled USPTO Should Improve Controls over Examination of Trademark Filings to Enhance the Integrity of the Trademark Register.
The report has some rather incredible findings.
“Overall, we found that USPTO’s trademark registration process was not effective in preventing fraudulent or inaccurate registrations. Specifically, we found the following:
I. USPTO lacks controls to effectively enforce the U.S. counsel rule.
II. USPTO approved trademark filings with digitally altered or mocked-up specimens.
III. USPTO did not ensure accurate identification of goods and services.
IV. USPTO lacks a comprehensive fraud risk strategy
While USPTO continues to introduce and refine efforts related to fraudulent or inaccurate trademark registrations, we identified multiple actions USPTO should take to improve the integrity of the trademark register. Due to the changing tactics and incentives of bad-faith actors, USPTO should improve its registration process or it will be at risk of allowing additional inaccurate registrations to clutter the trademark register. This clutter imposes costs—such as increased time and effort to search for or challenge unused marks—on legitimate users of the trademark system.” See page 3 of Final Report.
None of this is shocking to readers of this blog, of course. For years myself and others have been imploring the USPTO to do more to combat frauds and scams and take steps to ensure greater accuracy of what is contained in the USPTO’s register of trademarks. And as noted in the report, the resulting costs – not only time and money, but scope of rights – to legitimate trademark owners are significant.
When it came to digitally altered or mocked up evidence:
“Of 448 applications, we found that 167 (37 percent) contained a specimen with one or more indicators that the specimen was digitally altered or mocked up. Additionally, 78 of these 167 applications had specimens that met more than one indicator.” See Final Report at p. 6.
There is much more to digest in the full report, and hopefully there will be follow-up from the USPTO, the Department of Commerce, and Congress.
I also note that there has not been a Congressional oversight hearing of the Trademark Office of the USPTO in the House or the Senate in nearly 2 1/2 years.