Although trademark filings continued at record rates, 2018 may have been the quietest in recent memory for trademark related news. With no Supreme Court or otherwise major court decisions, no major rule changes, and no political developments directly affecting intellectual property, 2018 produced some interesting trademark developments, but nothing that is likely to be remembered for years to come.

Growth in USPTO filings continues. After an increase in trademark application filings at the USPTO of nearly 10% in Fiscal Year 2017, Fiscal Year 2018 saw growth of more than 8%. The filings of appeals and disputes at the Trademark Trial and Appeal Board (TTAB) also increased in every category during the last Fiscal Year. As a result, there are now in excess of 2.45 million active trademark registrations in the USPTO’s records, a number that has grown by more than 50% in the last 10 years.

Major industry increases: cannabis and cryptocurrency. While all types of trademark applications saw filing increases, the growth was even great in the blockchain (or cryptocurrency) and cannabis industries. In 2018 more than 1,000 applications referenced the term ‘marijuana’ or ‘cannabis’ in the description of goods and services, even though federal trademark registration for cannabis goods or services is still generally not allowed due to federal laws. Ten years ago, that number was less than 10! And the USPTO this year received more than 2,000 trademark applications related to cryptocurrencies and blockchains, nearly 10 times more than were received in that field just 3 years ago.

Artificial intelligence and trademarks. Computers and AI will likely be able to do a lot of work in the future. However, there is also a lot of trademark work they won’t be able to do. For example, AI can assist research and even writing, but can it help devise a strategy to maximize approval odds when facing a potential conflict in the trademark application process? Can AI draft a proper and skilled trademark application and know how to craft a description of goods that balances all the relevant factors such as breadth, scope, specifics, and registration strategy? Can AI weigh which arguments will work best in a response to a substantive office action refusal? The future of trademark law will inevitably feature a greater role for artificial intelligence, but it will not come close to replacing experienced counsel.

Scams continue unabated. The proliferation of scams preying on trademark owners continues. While the USPTO and other agencies have worked to combat these scams, they have not made a significant dent. Brand owners continue to receive bogus or questionable offers from a variety of places with names like Patent & Trademark Institute, WTRM, Glotrade, International Patent and Trademark Register, Intellectual Property Register Services, and – most astonishingly – something called Patent and Trademark Office. Scams targeting trademark registrants with the Amazon Brand Registry also continued, although the USPTO has been able to block many efforts to change registrant contact information without propert authority. Trademark owners should carefully examine all solicitations regarding their trademarks and ignore those for meaningless publications. While I hope that 2019 will see a breakthrough in stopping these scams, I am not optimistic.

Politics, news, and commentary applications abound. In 2018, several dozen new USTPO applications featured the term TRUMP in some manner; and more than 100 featured a variation on MAKE AMERICA GREAT AGAIN. The trend of filings related to almost major event in the news – weather events, Supreme Court nominations, and more – will likely continue to grow as technology has made the launch of a new business, especially an apparel line, simple and quick.

What to watch for in 2019? The steady rise in trademark application filings for most of the last decade means that finding a unique brand name is more challenging than ever; look for more brands to use obscure terms or coin made-up words. Over time, perhaps trademark law will need to tweak its analysis of what constitutes a ‘likelihood of confusion’ as consumers interact with and see advertising from more and more brands every day.

© 2018 Erik M. Pelton & Associates, PLLC. All Rights Reserved.

Erik Pelton® has been making trademarks bloom since 1999® as the founder of Erik M. Pelton & Associates®, a boutique trademark law firm in Falls Church, Virginia. The firm has registered more than 2,800 U.S. trademarks for clients and has represented hundreds of parties in trademark disputes. In 2018, Erik launched the Tricks of the Trade(mark)® podcast.

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