Is the Trademark Office a Rubber Stamp?
28 Pages Posted: 5 Feb 2012
Date Written: 2011
We have long lacked basic information concerning what proportion of trademark applications submitted to the U.S. Patent and Trademark Office (PTO) result in publication in the Official Gazette and in registration. Working from a previously unstudied dataset observing each of the some five million trademark registration applications submitted to the PTO from 1981 through 2010, this brief symposium contribution seeks to fill this gap in our knowledge. It reports and analyzes trademark application publication and registration rates at the PTO along a variety of dimensions, including by the year and filing basis of the application, by the type of mark that is the subject of the application and the category of goods or services with which the mark is associated, by the type and country of origin of the commercial entity applying for registration, and by the final status of applications that failed to survive to publication or registration. The article finds, in particular, that the publication rate for all applications filed from 1981 through 2007 was .76 and remained reasonably steady over the course of that period. The registration rate for all applications from 1981 to the November 16, 1989 effective date of Trademark Law Revision Act, which introduced the Intent to Use (ITU) filing basis, was .77. For all applications thereafter to 2007, the overall registration rate dropped to .53, largely as a result of ITU applications that failed to show use. The article speculates on why overall publication rates are significantly higher than 50 percent and why overall registration rates are strikingly close to 50 percent.
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