The Future of Trademarks in a Global Multilingual Economy : Evidence and Lessons from the European Union

The many national and regional trademark systems of the world are progressively integrating into a de facto global trademark system as firms increasingly adopt global branding strategies. Global integration presents significant challenges for trademark law and policy. Businesses around the world are facing mounting difficulties finding brand names that will be effective throughout the global marketplace, including in every one of its many languages, but that have not yet been claimed by another entity somewhere in that marketplace. The result is rising barriers to entry, incomplete market integration, and escalating consumer search costs. To explore the scope of this problem and possible responses to it, this Article presents an empirical study of trademark depletion in a microcosm of the global multilingual trademark system: the European Union trademark system. We use recently released data from the European Union Intellectual Property Office (EUIPO) and multiple other datasets to systematically study all 1.9 million trademark applications filed at the EUIPO from 1996 through 2018. We show that levels of trademark depletion in the European Union exceed even those in the United States. Very high proportions of the most frequently used words in the five major European languages—English, German, French, Italian, and Spanish—are already claimed as trademarks. We demonstrate how this condition is exacerbated by what we call the “reverse Babel problem” in multilingual trademark systems, in which the registration of a word mark in one language may effectively block registrations of translationally-equivalent words in multiple other languages. We further reveal that the EU trademark system is coping with the problem of trademark depletion by permitting worsening levels of trademark crowding, in which increasing numbers of closely-similar, if not confusingly-similar, marks are allowed to coexist in the marketplace. Based on the EU example and certain policies that we think contribute to trademark depletion and crowding, we set forth legal reforms that may help trademark systems around the world, including the U.S. system, to manage what may prove to be among the most intractable problems they may face this century