The following is an edited transcript of my video Update on Trademark Backlog at the USPTO.
Late in 2021, I provided some information about the backlog of trademark filings at the USPTO. As of May 2022, the backlogs are worse. I predicted that they would get worse before they get better, but hopefully we’re close to the peak worse backlog, and soon will see improvement.
The most important impact of the backlog is new applications. New applications are now taking more than eight months to get reviewed before anything substantive happens at the USPTO—before an examiner picks up a new application that’s been filed and begins the review of it, it’s taking more than eight months from the filing date.
The delay reviewing new applications leads to other delays throughout the system and to challenges for applicants who are trying to clear marks that might be impacted by pending applications and are waiting to find out what happens to somebody else’s application. It also means that the delay takes longer for anybody who’s going to ultimately get approval and benefit from a registration, the ®, the ability to sue in federal court for damages, certain types of damages, etc.
Other impacts include renewals taking a lot of time to file. We’re seeing evidence of use filings take longer than usual to file, and all of these have a ripple effect throughout the entire system that impacts every applicant in some way. One way is that by the time something gets reviewed, a period for responding may have expired or lapsed at the USPTO, which causes additional fees or limited options if the filing that took so long to get reviewed gets rejected or needs modification or tweaking. These are real impacts.
I know the USPTO is trying hard to fix this. It takes time to hire and train people, but I would like to see them hire more people, come up with new ways to train people, maybe a task force with some members of the public to help brainstorm ideas for how to attack this backlog. How do we get more examiners trained and up to speed? How do we help keep examiners from leaving the USPTO for private practice or retiring? What incentives might help keep those examiners who might otherwise move on to other careers?
It’s always important to file a trademark application sooner rather than later, but now more than ever, because we know it’s going to take so long—more than a year on average—to get that registration. A lot of rights begin when you file the application, and it’s important to get that serial number and get in the database. But because of the backlog, it’s even more important to begin that application process as soon as possible.
These are some of the issues and some of my suggestions for how to deal with this backlog, which is in fact so significant that even the USPTO’s own dashboard about the backlog is often delayed in getting updated. So let’s work together to try to solve this by sending a letter to the USPTO with some constructive suggestions for how to attack this issue.