In a fascinating paper, Are We Running Out of Trademarks? An Empirical Study of Trademark Depletion and Congestion, Barton Beebe (NYU) and Jeanne Fromer (NYU), empirically challenge the conventional wisdom that "there exists an inexhaustible supply of unclaimed trademarks that are at least as competitively effective as those already claimed." Drawing on "all 6.7 million trademark applications filed at the U.S. Patent and Trademark Office (PTO) from 1985 through 2016 together with the 300,000 trademarks already registered at the PTO as of 1985," the paper finds that "rates of word-mark depletion and congestion are increasing and have reached chronic levels, particularly in certain important economic sectors" and that "new trademark applicants are increasingly being forced to resort to second-best, less competitively effective marks." In the face of such results, the authors advance a series of policy proposals designed to "preserve the proper functioning" of the U.S trademark system.
In a responsive essay, Does Running Out of (Some) Trademarks Matter?, Lisa Ouellette (Stanford), while describing the Beebe/Fromer paper as an "empirical tour de force," pushes back a bit on Beebe and Fromer's normative suggestions. The Ouellette essay explores why any reform proposals responding to Beebe and Fromer's work "should proceed cautiously" and also suggests avenues for future empirical work in this area.
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