Remarkably brief – Trademarks: All sold out April 2018

By HANS MUHLBERG, Published in Intellectual Property

There's an article in World Trademark Review entitled We're running out of good trademarks. It's based on a study that was conducted by academics from the New York University School of Law and published in the Harvard Law Review under the name Are we running out of trademarks? An empirical study of trademark depletion and congestion. The study confirms what all trademark lawyers know, that it's becomingly increasingly difficult to clear and register trademarks because there are simply too many of them about. There's nothing new in this – Richard Jenkins wrote about the problem more than 20 years ago.

The study is limited to the US Registry and the numbers look like this: 81% of the 1000 most-frequently used words in American-English, 62% of the 10 000 most-frequently used words, and 23.5% of the 86 408 most-frequently used words are registered as single-word trade- marks. That surely leaves a lot of words free for use and registration? Not really. The roughly 20 300 words that make up the 23.5% of the 86 408 most frequently-used words account for 74% of all word usage. And words that remain free for use and registration don't really lend themselves to shifting goods or services – they're unsexy words like disease, died, older, violence, least, drugs and husband.

The study seems to acknowledge that this congestion does at least force marketing people to become a little more creative, thereby weaning themselves off that irritating (but understandable) dependence on at least semi-descriptive or semi-laudatory words. Hence the emergence of businesses like Zoopla and Zillow. Or, as the study says, 'almost comically obtuse' names like Glog, Lunk and Zooth. But the study does suggest that this trend of companies seeking "to distinguish themselves by the relative awkwardness of their brand names...cannot be an effective strategy for all new trademark registrants".

So what now? Some argue that, as a result of various political and economic developments, English is likely to reduce in global significance, which will presumably lead to a decreased interest in English-language brand names. The study makes some suggestions, such as hiking renewal the need to establish intent or actual use (as the case may be) for all the goods or services covered; a regular proof-of-use requirement; even a return to the old days of protection limited to the actual goods or services covered.

There would be opposition for sure. Small business would baulk at increases in costs. Big brand owners would object to reduced protection. Trademark lawyers wouldn't be happy with changes that resulted in fewer registrations. But this is an issue that should be addressed.

Expropriation

There's a lot of talk in South Africa of expropriation, of amending the property clause in the Constitution to allow for expropriation of property
without compensation. The focus is on immovable property, particularly farmland. But one political commentator, Terence Corrigan, has remarked on the fact that the property clause isn't limited to immovable property, that it extends to all forms of property including intellectual property (IP) – indeed, in the famous Laugh-it-Off case the Constitional Court had to balance the right to property (in that case trademarks) with the right to freedom of expression.

So could IP rights really be expropriated without compensation? One hopes not, the international repercussions would be severe – in the extremely international and inter-connected world that is IP, a move like this would place South Africa in pole position for the title of The North Korea of IP – marginally ahead of North Korea itself!

And in what circumstances could expropriation of IP conceivably occur? I suppose it's possible that Cyril's thinking, "Hey, here's a chance to actually acquire the McDonald's trademark in SA, the one that I previously only had a licence to", but let's assume that his mind is on bigger things. The most likely scenario would be patents (possibly a pharmaceutical patent), with the justification being that it was being used to deprive people of something they can't do without. But there are already compulsory licensing provisions in the Patents Act, which deal with various situations such as demand that isn't being met and excessive pricing. I don't see it happening!

USA 2018

A recent Nigerian Trademark Journal reveals that Donald J Trump has filed applications to register the trademark Trump in Nigeria in respect of a range of business, financial, building, entertainment and hospitality services.

The message from the leader of the Free World seems to be as follows:

Shithole countries, don't give me your tired, your poor, your huddled masses... just give me your money.

Muhlberg, is an SA, UK and EU qualified IP lawyer. He presently finds himself in Europe, offering consulting and content writing services to various law firms. muhlbergip@gmail.com