Top Trademark Trends of 2022

The year saw many trademark stories in the news as backlogs continued at the USPTO even while application filing numbers dropped from their all time highs during the two previous years. It also saw the biggest procedural change to the USPTO application process in decades. Here are the biggest trademark stories of 2022 that we have been following at EMP&A.

USPTO backlog continues. USPTO pendency rates are at an all-time high, as it currently takes about 8 or 9 months, or more, for most new applications to be reviewed. Meanwhile, the USPTO shortened the response time for most Office Action responses from six to three months in December. While filings are down some from recent record levels, they are still quite high. And the number of active trademark registrations in the USPTO database is larger than ever. Additionally, since late December 2021, when new procedures went into effect, the USPTO has received around 100 expungement petitions and about 100 re-examination petitions to get rid of registrations for marks that are allegedly not in use.

IP Cases Abound at the Supreme Court. The Supreme Court will hear the “Bad Spaniels” appeal this term, a case in which Jack Daniels claims that a dog toy manufacturer is liable for trademark infringement and dilution for making dog toys that parody the Jack Daniels bottle. Also on the docket is Abitron Austria GmbH v. Hetronic International, Inc., which will determine the scope of the Lanham Act as applied to trademark infringement that occurs outside the US. The Court has also agreed to hear a patent case this term, and it will rule on a copyright fair-use case brought by the Andy Warhol Foundation for the Visual Arts that was heard this fall.

Queen of Christmas. All Mariah Carey wanted for Christmas was a trademark registration. Last March, Ms. Carey applied for the mark “QUEEN OF CHRISTMAS” at the USPTO for use in connection with a wide variety of goods and services. The application was initially approved and published for opposition in June 2022. But Elizabeth Chan, a musical artist who specializes in making Christmas music and has an album called Queen of Christmas, opposed the application in May. A notice of default was issued against Ms. Carey after no answer was filed in the proceeding. This story garnered much media attention, but much of it was inaccurate. Carey may still be able to use the phrase even without registration.

Celebrity trademark messes. Besides Mariah, there were many other celebrity trademark stories this year, as more an more celebrities launch more and more brands. One example was the November release of the Her Loss album by artists Drake and 21 Savage which included a fake Vogue magazine cover as part of the album artwork, as well as a fake version of Vogue magazine. On November 7^th, Conde Nast sued Drake and 21 Savage for $4 million for false advertising and infringing Vogue’s trademarks. The court issued a preliminary injunction and the duo agreed to no longer use Vogue’s marks in connection with the album.

Metaverse and NFT Filings Decrease. While substantially more applications for goods and services that include the terms “NFTs” and “non-fungible tokens” were filed in 2022 than 2021, the number of NFT applications began to decrease in the second half of 2022. Likewise, the number of applications for “virtual goods” and goods and services related to the “metaverse” have also declined in late 2022. It will be interesting to see if this decline continues into the new year.

Offensive names rebranded. A story that was many years in the making, but the football team in Washington, DC is now known as the Commanders, and the baseball team in Cleveland suited up in new Guardians uniforms.

Trademark Scams. Unfortunately, 2022 was yet another year in which trademark scams have continued to proliferate, and new scams were uncovered that dupe trademark filers in various ways. The FTC has also issued a proposed Trade Regulation Rule on Impersonation of Government and Businesses that will hopefully help increase enforcement efforts and reduce the number of scams. We intend to keep an eye on the implementation of the proposed rule and the impact it could have on scammers moving forward.

Looking ahead to 2023. It looks like next year will likely be another busy one in the world of trademarks, between the Supreme Court rulings and the backlogs and changes at the USPTO. My prediction is that backlogs at the USPTO will continue to grow before they begin to come down later in 2023. It will also be interesting to track how the recent economic uncertainties will impact the number of trademark application filings.

Erik Pelton® has been making trademarks bloom since 1999® as the founder of Erik M. Pelton & Associates®, a boutique trademark law firm in Falls Church, Virginia. The firm has registered more than 4,000 U.S. trademarks for clients and has represented hundreds of parties in trademark disputes.

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