Category Archives: Industry Breakdown

TM TKO: 2020 Trademark Economic & Practice Forecast

TM TKO is compiling data on trademark lawyers’ expectations for the new year. We would love to have your feedback! Topics include the economy and the trademark bar, practice challenges, USPTO performance, and more. All data will be used only in aggregate form, and published for the benefit of the trademark community; your individual response will not be used in any way.

To take the survey, go here.

Your feedback and insights will be shared with the trademark community. Make sure to visit TM TKO’s blog to see the results later this month.

Brands and Bad Things – the Flu

So, I got the flu over the holidays. It’s basically passed me – although it’s not entirely out of the house – and I figured I should at least turn several miserable days into a bit of blog content. I did some research about brands and the flu – not brands for flu PRODUCTS, but brands that include the word FLU or INFLUENZA.

As you would expect, many of these are influenza-related. That more interesting part are probably the non-flu related uses that clearly refer to influenza, and aren’t just coincidental uses of the abbreviation. There were only a handful, and a number included a second word that made the use of FLU a positive comparison, like FLU SHOT. In short: the influenza virus does not have any of the brand cachet that, say, a powerful and ill-tempered animal like a wolverine does. Alas, it’s not build some “bad boy” street cred just by being amazingly destructive — a thing must look stylish in the process. Diseases fall short, and just aren’t that useable as brands.

Some representative marks:

41: A FLU SHOT FOR YOUR HOUSE, pending for germ remediation services.
33: FLU SHOT for booze.
28: FLU-FLU for fishing lure (maybe this has some fishing-related meaning?).
25: FLU for clothing (filed by Fort Lewis College; possibly an acronym of some sort?); FLU GAME for clothing; THE VEGAS FLU for clothing.
18: GIRL FLU for carrying cases.
9, 24, 25: FISH FLU for clothing and such.

The following counts are for active applications or registrations that are focused on flu treatment or prevention, or merchandizing like clothing associated with those treatment or prevention efforts. This is counting by class, and a number of the applications in ancillary classes are by a couple of applicants in the “inform you about the risks of the flu” space. On the whole: as you would expect, most filings are for remedies in Class 5 and medical services in Class 44. There was little specialized medical equipment in Class 10.

3: 1
5: 30
9: 3
10: 2
16: 2
18: 2
25: 5
30: 2
35: 13
36: 3
41: 6
42: 9
44: 22

In conclusion, our considered corporate opinion is: really, don’t get the flu this year. It isn’t fun.

Pictured: the author’s house during the holiday season, 2019

Team Names and Business Branding in College Towns

I am from Auburn, AL, a college town and home of Auburn University, and one thing that has always amused me since becoming a trademark lawyer is how much the University’s “Tigers” branding has suffused the community. From the Tiger Rags clothing store to the Tiger Tire & Auto repair shop to the Tiger Town mall in next-door Opelika, “Tiger” branding feels like it is everywhere.

Just for fun, I used TM TKO’s new business listing data to do a bit of research on the commonality of team nicknames in local company names in the combined statistical areas (CSAs, geographic regions set up by the Office of Management and Budget) near the university. A completely random assortment of schools and names:

Badgers near Madison: 200+
Bruins in LA: 590+
Buckeyes near Columbus: 500+
Bulldogs (or Dawgs) near Athens/Atlanta: 150+
Crimson in Boston: 20+
Huskies in Seattle: 20
Tigers near Auburn: 40+
Volunteers (or Vols) near Knoxville: 200+
Wolverines near Ann Arbor/Detroit: 140+

To do this sort of research, just go to the manual search tool and the Business Listing section.

Tracking an Industry – Real Estate

Trademark filings can be an interesting lens to look at an entire industry. Today, we’ll look at real estate. It had a huge rise in the 2000s as housing prices boomed, then the subprime mortgage crisis hit the industry hard from 2007 – 2010.

Trademark filing trends track the rise, fall, and slow return of the industry surprisingly well. I looked at 4 main classes – Class 9 (apps), 35 (), 36 (), and 42 (hosted software). Filing trends for each largely match up, although Class 36 is both the most common class for applications and has seen the most proportionate growth in the post-2013 rebound.

The filing uptick before 2007 is clear, and followed by the sharp, recession-induced tail that we would expect. Filings were static though 2013, and started to rebound. Class 9 and 42 (apps and websites) are the least common, which may make sense given the additional technological investment required. Class 35 (real estate sales and marketing services) were more common, and Class 36 (listing and brokerage services) by far the most.

It’s not quite clear why Class 36 applications have spiked more than other classes over the last three years. I suspected that it might be a rise in foreign applicants, especially from China, but that is not a meaningful factor.

It is interesting that trademark filings have jumped more than actual US home sales – sales dropped from more than 7 million in 2005 to a low of 4.1 million in 2008 and 2010; sales have only rebounded to around 5.5 million per year in 2017-2018.

Spring Training – Baseball Brands

Here in Nashville, we’re starting to get occasional warm days (and even more occasional dry days), and spring training baseball has arrived with the warmer weather. Our local AAA team, the Nashville Sounds, has a beautiful stadium right next to downtown, and we can’t wait for the season to start.

In honor of the boys of summer, this blog post looks at the key term in team names, and how popular they are as marks not for pro baseball teams. The research looked at singular and plural forms, which probably overcounted Reds and Nationals a bit, but at least this permitted consistent methodology. The Google Books N-gram research doesn’t try to exclude baseball content in the same way, so marks like RED SOX aren’t screen for non-baseball use in the same way.

Twins, Angels, and Nationals were much more common than the median in both lists, with Rays, Athletics, Tigers, Rangers, Pirates, Reds, and Giants substantially above the median on both lists, too. The terms that had the least salience in more general brand use and Google N-gram book usage were Orioles, the two colored Sox, Astros, and Diamondbacks, with Phillies, Marlins, Dodgers, Padres, and Rockies all lower than the median on both, but less dramatically so.

Braves and Brewers were a good bit more common on the brand side than n-grams, and Cubs and Cardinals were the only terms that were noticeably more common from an n-gram perspective (versus the median) than as brands.

The raw data:

Team Live
Non-Team
Live
vs median
N-gram N-gram

vs median

Orioles 3 1% 0.00004 35%
Red Sox 1* 0% 0.00012 100%
Yankees 144 72% 0.00034 274%
Blue Jays 24 12% 0.00002 14%
Rays 665 331% 0.00138 1,113%
White Sox 0 0% 0.00004 34%
Tigers 1260 627% 0.00032 258%
Royals 3288 1,636% 0.00006 48%
Twins 2366 1,117% 0.00081 653%
Angels 4516 2,247% 0.00028 199%
Athletics 1313 653% 0.00025 202%
Mariners 143 71% 0.00025 102%
Rangers 867 431% 0.00029 230%
Astros 58 29% 0.00002 15%
Braves 611 304% 0.00012 97%
Nationals 17885 8,898% 0.00037 298%
Mets 201 100% 0.00008 65%
Phillies 10 5% 0.00005 40%
Marlins 138 69% 0.00002 12%
Brewers 1156 575% 0.00007 56%
Cubs 146 71% 0.00018 145%
Reds 5489 2,731% 0.00022 177%
Pirates 475 236% 0.00045 363%
Cardinals 203 101% 0.00022 177%
Dodgers 20 10% 0.00011 89%
Padres 28 14% 0.00005 40%
Giants 878 437% 0.00056 452%
Rockies 62 31% 0.00010 81%
Diamondbacks 60 30% 0.00001 6%

 

 

In-Depth Prosecution Stats – 2(d) Refusals in Class 1

At TM TKO, we are really interested in prosecution trends. Today, we are going to zoom in on one type of refusal – 2(d) likelihood of confusion refusals – in one class, International Class 1. International Class 1 primarily consists of industrial chemicals and similar products.

In particular, we wanted to test out class relationships – how strong was the likelihood of getting a refusal if the prior mark was in-class, was in a coordinated class (but not in-class), or was in an “unrelated” class (not in-class and not in a coordinated class), and how likely were the refusals to “stick” and cause the application to go abandoned?

While fewer than 12% of applications filed at any time received 2(d) citations, the 2(d) citation rate jumps to about 30% from 2014 to the present. It’s perhaps unsurprising that an increasing 2(d) rate results from an increasingly crowded registry.

As for the content of the cited marks, 2(d) refusals were not quite twice as common in the same class (i.e. the prior registration had International Class 1) than in all the classes noted by the Office as “coordinated” classes combined (any of International Classes 5, 17, 35, 42, 44, A, or B). “Out-of-class” citations – all other classes except Class 1 or any coordinated classes – were surprisingly common, with slightly more “out-of-class” citations than in-class citations, and about twice the number of out-of-class citations as coordinated class citations. There are many more marks not in one of Class 1’s coordinated classes than not, of course, which may account for the difference – currently, there are some 67,000 active filings in Class 1, just short of 950,000 in Class 1 or a coordinated class of Class 1, and more than three million neither in Class 1 nor a coordinated class of Class 1.

Cl1_2d_core

The importance of class and coordinated class are more apparent in looking at how frequency applicants overcome the initial 2(d) citation or citations. Applicants that receive a 2(d) citation in Class 1 or a coordinated class overcome it roughly 60% of the time; applicants that receive a 2(d) citation in an “unrelated” class are about 10% more likely to be successful. The same trends hold since 2014 as over all citations, suggesting that – at least for this class – citations in unrelated classes were noticeably less likely to hold up after further argument by the applicant.

Cl1_2d_coor

Within the coordinated classes, refusals in Class 1 tended to be the most difficult to overcome; citations to Class 42 (traditionally a grab-bag of services, though now more narrowly defined) and Class 200 were the most likely to be overcome by applicants. Refusals in Classes A and B were less common, but comparatively difficult to overcome, perhaps because they can include especially broad descriptions of goods.

We will be looking at other classes and other prosecution in more depth over the coming weeks and months. If you have specific topics of interest, please let us know at inquiries@tmtko.com.

Athletes and Trademark Protection

Michael Jordan’s basketball greatness translated to commercial appeal and the the strong, durable AIR JORDAN brand. What about other, contemporary athletes?

This blog post looks at the brand protection sought and obtained by major athletes in the US, and describes some common practices and trends. For convenience, we’ll look at the 10 highest paid players in the four major sports leagues in the US, plus high-profile figures from other sports, and limit the inquiry to the US trademark registry. Only active athletes were used. We searched for the athlete’s name as a mark (both names together or first or last if they were distinctive) plus, if we found one and it was held by a corporate entity, we searching for that corporate entity as well. We have included both salary and endorsement data, to see if one was more highly correlated to trademark filings than the other.

Trademark filing volume was quite a bit higher for stars with substantial endorsements – it had a correlation of about 0.47 with the number of trademark filings; the salary correlation of 0.02 was comparatively minimal. It certainly appears that, outside of shoes and sports equipment, most of the value of an athlete’s “brand” is in their recognizable endorsement rather than in selling branded products. Nevertheless, filing frequency rose with endorsement income, as an understandable effort to protect that consumer recognition above and beyond the protections provided by right of publicity law.

The most striking examples of the correlation between endorsement value and trademark filings were in the NFL – defensive stars Khalil Mack and Aaron Darnold made a pittance in endorsements compared to offensive stars – quarterbacks like Aaron Rodgers, Matt Ryan, Drew Brees, and Tom Brady, but also wideout Odell Beckham Jr. Even Alex Smith made significantly more than either defensive star, and Jimmy Garoppolo made more than Darnold. Only Brady had significant numbers of trademark filings; Rodgers, Garoppolo, and Cousins all had a couple, and Brees’ name was used in a filing by AdvoCare with his permission.

Endorsements in the NBA were far more significant than in any other major US league, and more widely distributed, with seven stars making over $10,000,000 in endorsements and others close behind. International stars in soccer, tennis, and golf did similarly well. Six of the top ten NBA players in earnings had at least one active trademark application or registration in the US, too. Only three soccer stars passed the $10 million mark, while five tennis stars (the Big Four plus Kei Nishikori and Serena Williams) did. So did four golfers, all men.

Endorsements and trademark filings were lowest in the NHL and MLB. The top hockey players, Sidney Crosby, Alex Ovechkin, and Connor McDavid, all made under $5 million in endorsements. None had US trademark filings, although perhaps their Canadian endorsements are worth more. Baseball players had a few more filings, but even less lucrative endorsements, perhaps because the sport tends to generate mainly regional allegiances instead of national interest in the sport as such.

The content of the trademark filings were a mix of merchandised goods and charitable services. Perhaps the most interesting was an amateur sports app created by Justin Verlander. Individuals filed a bit under half of the applications (although some applicants later filed under a business entity too), and a couple granted permissions to file to third parties – Brees, mentioned above, and Albert Pujols, who had partnered with a local hospital. Charitable foundations filed about a tenth of the applications.

 

League Player Salary Endorsements US TMs Owner League correlation -0.108384656
NFL Aaron Rodgers $66,900,000 $9,000,000 2 ACR Ventures LLC Salary correlation 0.014802715
NFL Matt Ryan $52,500,000 $5,000,000 0 Endorsements correlation 0.475685934
NFL Jimmy Garoppolo $42,600,000 $500,000 2 Yee & Durbin Sports LLC
NFL Khalil Mack $41,000,000 $750,000 0 League covariance -1.472222222
NFL Aaron Darnold $40,900,000 $250,000 0 Salary covariance 1797753.333
NFL Alex Smith $40,000,000 $1,000,000 0 Endorsements covariance 50763155.56
NFL Drew Brees $27,000,000 $13,000,000 1 AdvoCare International, L.P.
NFL Tom Brady $15,000,000 $14,000,000 33 TEB Capital Management, Inc.
NFL Odell Beckham Jr. $21,500,000 $6,500,000 0 Odell Beckham Sr. filed for OBJ in 2016, but it is abandoned
NFL Kirk Cousins $26,000,000 $1,500,000 2 Kirk Cousins
NBA LeBron James $33,300,000 $52,000,000 38 LeBron James
NBA Stephen Curry $34,700,000 $42,000,000 4 Wardell Stephen Curry
NBA Kevin Durant $25,000,000 $33,000,000 5 Kevin Durant Charity Foundation
NBA James Harden $28,300,000 $20,000,000 0
NBA Russell Westbrook $28,500,000 $19,000,000 13 Russell Westbrook Enterprises, Inc.
NBA Damian Lillard $26,200,000 $14,000,000 1 Damian Lillard
NBA Blake Griffin $29,500,000 $6,000,000 0
NBA Giannis Antetokounmpo $22,500,000 $13,000,000 4 Giannis Antetokounmpo
NBA Carmelo Anthony $26,200,000 $7,000,000 0 The Carmelo Anthony Foundation, Inc. (2 abandoned)
NBA Anthony Davis $23,800,000 $9,000,000 0 Anthony Marshon Davis, Jr. (1 abandoned)
NHL Connor McDavid $15,000,000 $4,000,000 0
NHL John Tavares $15,900,000 $1,400,000 0
NHL Carey Price $15,000,000 $600,000 0
NHL Alexander Ovechkin $10,000,000 $4,500,000 0 Alexander Ovechkin (2 abandoned)
NHL Sidney Crosby $10,000,000 $4,000,000 0
NHL Jonathan Toews $12,000,000 $1,700,000 0 Jonathan Toews Enterprises, Inc. (1 abandoned)
NHL Jamie Benn $13,000,000 $100,000 0
NHL Patrick Kane $12,000,000 $350,000 0
NHL Anze Kopitar $12,000,000 $60,000 0
NHL John Carlson $12,000,000 $50,000 0
MLB Mike Trout $32,300,000 $2,500,000 0
MLB Clayton Kershaw $33,800,000 $800,000 2 Kershaw Management, LLC
MLB David Price $30,700,000 $650,000 0
MLB Miguel Cabrera $30,500,000 $500,000 3 Jose Miguel Cabrera (3 abandoned)
MLB Yoenis Cespedes $29,500,000 $500,000 0
MLB Justin Verlander $29,000,000 $1,000,000 1 Justin Verlander (amateur sports app)
MLB Giancarlo Stanton $28,200,000 $3,200,000 0 Giancarlo Stanton (1 abandoned)
MLB Albert Pujols $27,000,000 $1,000,000 0 Two apps for a health center filed by a hospital
MLB Felix Hernandez $27,300,000 $400,000
MLB Joey Votto $25,300,000 $250,000 0 Joey Votto Foundation (1 abandoned)
Tennis Roger Federer $12,200,000 $65,000,000 0 2 abandoned
Tennis Rafael Nadal $14,400,000 $27,000,000 4 Aspemir SL
Tennis Kei Nishikori $1,600,000 $34,600,000 0
Tennis Novak Djokovic $1,500,000 $22,000,000 5 Novak Djokovic
Tennis Serena Williams $62,000 $18,000,000 4 Serena Williams (several abandoned) / Aneres, LLC
Tennis Caroline Wozniacki $7,000,000 $6,000,000 0
Tennis Grigor Dmitrov $6,700,000 $6,000,000 0
Tennis Andy Murray $1,000,000 $10,500,000 2 77 Management Limited
Tennis Sloane Stephens $5,700,000 $5,500,000 0
Tennis Garvine Muguruza $5,500,000 $5,500,000
Golf Tiger Woods $1,300,000 $42,000,000 16 ETW Corp.
Golf Phil Mickelson $4,300,000 $37,000,000 6 Mickelson, Inc.
Golf Jordan Spieth $11,200,000 $30,000,000 0
Golf Rory McIlllroy $3,700,000 $34,000,000 0
Golf Justin Thomas $21,000,000 $5,000,000 0
Soccer Lionel Messi $84,000,000 $27,000,000 0
Soccer Christiano Ronaldo $61,000,000 $47,000,000 16 Christiano Ronaldo
Soccer Neymar $73,000,000 $17,000,000 0 Neymar Sport e Marketing s/s Ltda (1 abandoned)
Soccer Gareth Bale $28,600,000 $6,000,000 0
Soccer Paul Pogba $25,000,000 $4,500,000 0
Soccer Oscar $25,900,000 $1,500,000 0
Soccer Wayne Rooney $22,000,000 $5,000,000 0
Soccer Luis Suarez $19,900,000 $7,000,000
NFL https://www.forbes.com/sites/kurtbadenhausen/2018/09/20/the-nfls-highest-paid-players-2018-aaron-rodgers-leads-with-76-million/
NBA https://www.statista.com/statistics/202939/nba-players-with-the-highest-salaries/
NHL https://www.forbes.com/sites/kurtbadenhausen/2018/12/05/the-nhls-highest-paid-players-2018-19-connor-mcdavid-on-top-at-19-million/#4f8917565871
MLB https://www.forbes.com/sites/kurtbadenhausen/2018/04/11/major-league-baseballs-highest-paid-players-for-2018/
Tennis https://www.forbes.com/sites/kurtbadenhausen/2018/08/27/highest-paid-tennis-players-2018-roger-federer-aces-competition-with-77-million/#164ecb621fb3
Golf https://www.cnbc.com/2018/08/09/the-5-highest-paid-golfers-in-the-world.html
Soccer https://www.cnbc.com/2018/06/13/the-8-highest-paid-soccer-players-in-the-world.html