Benjamin Appelbaum, Attorney at Law

Trademark congestion may be an issue for companies

Of the 1,000 most commonly used words in the English language, 81 percent of them have been used to create single-word trademarks. That may be a hindrance to companies in New Jersey and elsewhere that are looking to create quality brand names. The study, which was published in Harvard Law Review in February, analyzed 6.7 million trademark applications from 1985 to 2016. It also included 300,000 marks that were already registered as of 1985.

When the study expanded its reach to look at the top 5,000 words, it found that 69.4 percent of those had been trademarked as well. Of the top 86,408 words, 20,295 had been trademarked, and that represents roughly 74 percent of the words typically used. Therefore, most words that people use on a regular basis are likely to have been trademarked. Many of the words that had not been trademarked were considered to have negative connotations.

In some cases, the lack of available trademarks can be dangerous. For instance, if a drug has the same or similar name to another drug, a doctor could prescribe the wrong medicine by mistake. As many as a quarter of medicine errors are caused because two medications sound nearly the same. To reduce trademark congestion, it has been suggested that maintenance fees should be charged as this could increase the chances that trademarks will be relinquished.

A trademark may be an effective way to protect intellectual property. However, it must generally be unique enough to prevent confusion with other existing trademarks. Therefore, it may be a good idea for a company to have an attorney perform a trademark search prior to registering their own. Doing so may avoid committing trademark infringement.

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Benjamin Appelbaum, Attorney at Law - Intellectual Property

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