Does Running Out of (Some) Trademarks Matter?

12 Pages Posted: 20 Feb 2018 Last revised: 28 Feb 2018

Date Written: February 9, 2018

Abstract

Professors Barton Beebe and Jeanne Fromer's empirical tour de force presents a strong challenge to the conventional wisdom that there are infinite potential trademarks. To be sure, the claim that potential trademarks, broadly defined, are inexhaustible is tautologically true: there are infinite combinations of letters and other symbols-including sounds and colors-any of which might serve as a mark. In this sense, the claim that we might run out of trademarks seems as absurd as John Stuart Mill's concern that we might run out of music. But not all marks are created equal. Some combinations of letters are unwieldy or unmemorable; others have negative connotations. Beebe and Fromer argue that the most valuable marks are common words, short and pronounceable neologisms, and common U.S. surnames. The concern about running out of these marks is far from absurd-just as Mill's anxiety about running out of music makes much more sense when confined to three-note melodies such as the trademarked NBC chimes, of which there are only 469 possibilities.

In this short space, I wish to laud the remarkable descriptive contribution of "Are We Running Out of Trademarks?" while sounding a note of caution on the normative implications. Beebe and Fromer's data convincingly demonstrates that short, common word marks are becoming depleted and congested, and they present a number of plausible hypotheses about the negative welfare impact of this trend. Their findings suggest that trademark policy has been based on false assumptions and should be closely reexamined. But their data cannot elucidate the actual costs of depletion or congestion-particularly without noting how the market will adapt to reduce these costs-and cannot reveal if there are countervailing benefits. Generating concrete evidence of these costs and benefits seems like a necessary next step before recommending any significant changes to the current trademark system. After offering a laudatory evaluation of the value of Beebe and Fromer's descriptive work, I explore why reforms in reaction to their research should proceed cautiously, and I suggest important avenues for future empirical work to build on these results.

Keywords: Trademark, Intellectual Property, Depletion, Congestion, USPTO

JEL Classification: K00, O34

Suggested Citation

Ouellette, Lisa Larrimore, Does Running Out of (Some) Trademarks Matter? (February 9, 2018). Harvard Law Review Forum, Vol. 131, p. 116, 2018; Stanford Public Law Working Paper; Stanford Law and Economics Olin Working Paper No. 515. Available at SSRN: https://ssrn.com/abstract=3125776

Lisa Larrimore Ouellette (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305
United States

HOME PAGE: http://law.stanford.edu/directory/lisa-larrimore-ouellette/

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