Are There as Many Trademark Offices as Trademark Examiners?

Abstract

Federal trademark registration rights have grown in import and trademark owners have taken notice.  In the fiscal year of 2018, over 660,000 federal trademark registration applications were filed with the U.S. Patent & Trademark Office (Trademark Office or Agency), representing a 60% increase from a decade prior.  Yet despite the fact there is growing concern that the Agency is routinely issuing inconsistent trademark determinations, systematic empirical studies of the administrative process of obtaining federal registration rights are virtually nonexistent.  This Article begins to close this gap by conducting the first large scale study of trademark officials, known as trademark examining attorneys, that make the initial determination on whether to accept or decline a federal trademark registration.  Utilizing a novel dataset comprising over 7.8 million trademark applications, this Article examines the extent to which trademark examining attorney’s determinations differ from one another.  We find substantial heterogeneity in Trademark Office outcomes.  Trademark examining attorneys have wildly divergent publication rates and registration rates even while controlling for a range of characteristics of the applications.  The duration of time an application is before the Trademark Office also varies considerably among trademark examining attorneys as does whether a filed opposition is sustained.