Why is the United States Patent and Trademark Office taking so long to respond to trademark filings?
The USPTO’s goal is for new trademark applications to be reviewed within 2.5-4.5 months after the date of filing. I’ve practiced trademark law for 17 years, and for most of that time they have been reasonably good at hitting that target. However, per their Trademarks Dashboard, the currently wait time for initial review of trademarks is 6 months, and I’ve seen some applications wait for review for longer than that.
What’s the delay all about?
As of June 2021, according to the USPTO, there has been a 63% year over year increase in the number of new trademark applications. When a new trademark application is filed, it’s assigned to an Examining Attorney employed by the USPTO. That attorney needs to review the application and determine whether or not it satisfies the USPTO’s requirements and should proceed to registration.
As you can imagine, the number of fully trained Examining Attorneys on staff at the USPTO has not increased by 63% in the last year. That said, the USPTO does state that “we’ve hired more examining attorneys and staff, we’re finding better ways to distribute the workload among our current attorneys and staff, and we’re looking at every step in the examination process to find ways to increase efficiency.”
What are the sources of this surge in trademark applications?
One cause seems to be the increase in e-commerce and other new businesses due to COVID. A recent report from the National Bureau of Economic Research found that the number of U.S. applications for new businesses from mid 2020 to mid 2021 was the greatest on record (going back to 2004 – did nobody keep track of new business starts prior to 2004?).
However, a huge percentage of these new applications are coming from China. And unfortunately many of them appear to be fraudulent.
A recent article in Fortune reported the law firm Gerben Perrott’s finding that “[s]o far in 2021, 29% of all trademark applications have come from China-based applicants. In 2010, that figure was less than 1%.” The article goes on to state that “China’s local governments are paying companies and individuals to register U.S. trademarks.”
(Note to self: remember to ask if San Diego will pay me to register trademarks; that sounds like a pretty cushy job.)
Of course, there’s nothing wrong with a business in China apply to register its marks in the U.S. on a legitimate basis. The problem is that many of these filings have no relation to reality. Many are simply random combinations of letters. A recent post (hat tip to Janet Satterthwaite) on a trademark email list that I subscribe to listed a few recent gibberish trademark applications from China, including ERWUDELING, TEWPOY, JAWMEU, TAHPAC (my second favorite rapper, GVUBE, and TOCXOE. Is ERWUDELING really a mark used in interstate commerce in connection with “Blouses; Blousons; Cardigans; Jumpsuits; Kaftans; Nightdresses; Body shirts; Button-front aloha shirts; Hoodies; Jackets; Short sets”? Maybe; the mark does appear on this website, which was used as a specimen in the USPTO application, but their web presence appears to be limited to just that one link.
Why are there so many applications from China? Well, as noted above, many are surely legitimate applications from real businesses. It’s also possible that this is a result of the U.S.’ long-simmering trade war with China. By clogging up the USPTO’s system, the flood of applications increases costs and causes delays for U.S. businesses. Determining whether this is a real cause of the issue is above my pay grade.
What can U.S. trademark applicants do about it?
Other than calling your Senators and Congressional representatives (if you’re based in the U.S. or a U.S. citizen, of course), there’s not much an individual can do to resolve this issue. However, there are steps one can take. Conducting a thorough search before filing a USPTO trademark application is always advised, and when the USPTO review process is delayed, the search process is even more essential. And as with any matter where there’s a long delay, the sooner you file your application, the sooner it’ll get reviewed.
Hopefully the USPTO will be able to take steps to resolve this issue without imposing too many additional burdens on legitimate trademark applicants. In the meantime, I’ll continue to monitor the USPTO.
If you want to get a jump on the trademark process, feel free to be in touch with me.