Think of a catchy brand name. Now another. Now try a third. It starts to feel difficult, right? This isn’t just your imagination. According to WIPO, more than 10 million trademarks are filed every year. When you also take into account that trademarks can exist forever, the total number of existing trademarks increases every year. Currently, there are over 80 million trademarks in force. This trademark congestion raises an important question for every new company: are we running out of trademarks?
How big of a problem is it?
According to a study made in the US and published in the Harvard Law Review, in 2016 81.3% of the 1,000 most frequently used words in the English language were registered as single-word trademarks.
Trademark congestion leads to many kinds of harm and difficulties. For example, it raises costs particularly for new businesses, as they face more legal challenges. It also reduces of effectiveness of all trademarks, simply because there are so many similar brand names. Also, consumers suffer, since they have to use more bandwidth in navigating the congested brand universe. It is more difficult for them as well to remember and differentiate between similar brands.
It is difficult to find brand names that are strong from a marketing perspective (short, memorable, positive, etc) and are legally available. Also, it is not enough that a brand name is available in one country. You should try to find a name that’s available in all countries, or at least in all countries where you operate.
As is well known, if the trademark is distinctive, companies usually prefer to register it as a word trademark because in most cases it gives the strongest possible protection for the mark.
Sometimes if a clearance search shows obstacles, companies opt to register the mark in a figurative form in order to reduce the likelihood of refusal or office action.
Filing statistics from EUIPO seem to correlate with this trend. In the period of 2000 to 2005, almost 64% of trademark applications was word marks. From 2015 to 2020 this figure had dropped to approximately 55%. The relative decline in word mark filings has decreased by about 16% in this time period. There may be other factors behind this trend as well, but it is not a stretch to think that the decline in word mark applications is due to trademark congestion.
What can you do?
Trademark congestion means that it is increasingly difficult to find available brand names. Unfortunately, there is not very much you can do about it, other than trying to come up with inventive names. One way to do this is to use neologisms, i.e. newly invented words, but even that poses challenges because they are often similar to existing words. One common trend, that works quite well, is to take an existing non-distinctive word(s), and use that as a base for an invented word. Examples include Shopify and Groupon.
One thing that you can do is to focus more on creating strong visuals for your brand. There is more “available space” in the visual world.
An added bonus is that studies show that visuals can capture attention quickly and are processed by the brain faster than text. This makes them highly effective in advertising and branding efforts.
One key reason is that visual elements, such as logos, colors, and images, create strong mental associations and triggers that aid memory recall. For instance, one study highlighted that people are 81% more likely to remember a brand’s colors compared to its name. Visuals like logos can communicate complex messages at a glance, making them easier to understand and remember.
Conclusion
It is increasingly difficult to come up with brand names that are both marketable and legally available. Companies must get better and more creative in finding new brand names. They could also put more focus in the visual appearance of the brand, and make it the central point of the brand.
Read more:
Harvard Law Review article (external)
Is your trademark “available”?
The power of logos
