Member Article

The analytics company Clarivate recently published some trade mark filing statistics that tell us quite a bit. They certainly show that despite all the talk of a chronic COVID-19/post-COVID-19 business slump, there’s actually considerable business optimism out there. The statistics also seem to correspond with all the talk we heard recently of trade mark filings being unusually buoyant in the second half of 2020.

The stats are far from complete and they relate to just four trade mark jurisdictions: the USA, the EU, the UK and Australia. What we see is significant growth in trade mark filings during the first six months of 2021 as opposed to the same period in 2020.

FILING STATS FOR THE PERIOD 1 JANUARY 2021 – 30 JUNE 2021

USA: over 350 000 trade mark applications were filed, an increase of 47% on the first half of 2020.

UK: over 90 000 trade mark applications were filed, an increase of 69% on the first half of 2020.

European Union Intellectual Property Office (EUIPO): over 88 000 trade mark applications were filed, an increase of 27% on the first half of 2020.

Australia: some 35 000 trade mark applications were filed, an increase of 16% over the first half of 2020.

WHO’S FILING THESE TRADE MARK APPLICATIONS?

Chinese companies. The figures here are quite remarkable:

• Of the 350 000 trade mark applications filed in the USA, Chinese applicants accounted for over 100 000 of them, some 29%. This is an increase of 256% over last year.
• In the EU, Chinese applicants accounted for 20% of the filings, well ahead of local heavyweights Germany and Italy.
• In the UK, filings by Chinese companies are up 298% from last year.
• In Australia, filings by Chinese companies have grown by 57%.
  
  

US companies. During the first six months of 2021, US companies increased their filings at home, the EU and the UK.

UK companies increased their filings at home dramatically (34%), but have dropped their filings almost as dramatically in the EU (23%) – there will almost certainly be a link to Brexit here.

European companies increased their filings in the UK hugely, by 432%. Once again, this will almost certainly be linked to Brexit.

SO, WHAT ARE WE TO MAKE OF THESE FIGURES?

We’ve made the point before but it’s worth making again. Trade mark protection should be a key component of any business plan. This applies to large companies as well as small ones. Many companies will not have any inventions that they can patent, product designs that they can register as industrial designs, or software that they can protect through the law of copyright. Yet they will all have a business or product identity that they can and should protect through the law of trade marks. The stats suggest that many companies do understand this.

TRADE MARK PROTECTION

This, in a nutshell, is what trade mark protection comprises:

• Understanding what a brand is. In essence, it is any feature that can distinguish the product (goods or services) from those of others. Yes, there will almost invariably be a brand name, but there are many other forms of brands: logos, straplines, colour combinations, possibly even more obscure things like sounds.
• Creating a brand (trade mark) that can be used, protected and licensed. The first step in the brand creation process requires you to resist the perfectly normal urge to choose a name or logo that describes the product. What you want is something that will make you to stand out from the competition.
• Clearing your brand. Yes, there is a cost involved to trade mark searching but it’s nothing compared to the expense of defending a trade mark infringement claim.
• Protecting the brand through trade mark registrations. These registrations will be in the most important countries and in the most important product categories. For companies that operate in foreign jurisdictions, there may be ways of protecting these through the international system, the Madrid Protocol.
• Entering into trade mark licence arrangements where they might enable you to increase your business.
• Enforcing your trade mark when it is infringed.
• Being open to partnership arrangements such as co-branding. But make sure that your rights are safeguarded.
  
  

This is no more than a brief synopsis. If you have any queries, please call:

Rowan Forster

IP Patent Attorney Executive

[email protected]

+27 83 440 3170