The Looming Trademark Crisis: Why a Number Can Cost You Big
Nearly $14 billion was spent on trademark legal services in the US in 2022, a figure that’s poised to climb as increasingly broad trademark applications – like Troy Aikman’s attempt to own the number “EIGHT” – gain traction. The recent settlement between Aikman and Lamar Jackson over this very issue isn’t a victory for common sense; it’s a warning sign. It reveals a system vulnerable to abuse, where even the most basic building blocks of commerce can be locked down, stifling innovation and potentially opening the floodgates for aggressive legal action against small businesses.
The “EIGHT” Problem: A Generic Mark Gone Wild
The case centered around Aikman’s attempt to trademark the single digit “EIGHT” for a vast range of products, from clothing to beverages. While he used the number during his NFL career, so have countless others. Lamar Jackson, who also utilizes “8” in his branding (“Era 8 by Lamar Jackson”), rightfully opposed the application, arguing – and rightly so – that a single numeral shouldn’t be monopolized. The USPTO (United States Patent and Trademark Office) should have immediately rejected the application, recognizing its inherently generic nature. However, the settlement reportedly allows Aikman to continue using the mark, albeit with an agreement not to pursue Jackson specifically. This is where the real danger lies.
Why This Settlement Sets a Dangerous Precedent
The core issue isn’t about Aikman and Jackson; it’s about the precedent this sets. If the settlement merely protects Jackson from legal action while leaving Aikman free to pursue others, it effectively grants him a weapon to stifle competition. Imagine a small boutique clothing store using “8” in its branding – they could now face legal threats from a major corporation. This isn’t about protecting brand identity; it’s about controlling a fundamental element of communication. The USPTO’s failure to initially reject such a broad claim signals a worrying trend towards overly permissive trademark approvals.
The Rise of “Defensive” Trademarking and Its Impact
We’re seeing a surge in what’s being termed “defensive” trademarking – companies rushing to secure rights to common words, phrases, and even numbers, not because they have a specific branding plan, but to prevent others from using them. This is fueled by the fear of losing out and the increasing sophistication of brand protection strategies. This trend is particularly pronounced in rapidly evolving industries like technology and fashion, where new brands emerge constantly. The result? A legal minefield for entrepreneurs and a chilling effect on creativity.
Beyond Numbers: The Threat to Common Phrases
The “EIGHT” case isn’t isolated. We’ve seen similar attempts to trademark common phrases and expressions. This isn’t just about numbers; it’s about the erosion of the public domain. Consider the implications for slogans, taglines, and even descriptive terms. If companies can successfully trademark these elements, it will become increasingly difficult for new businesses to differentiate themselves and communicate their value proposition. The World Intellectual Property Organization (WIPO) provides valuable resources on trademark law and global trends.
What Can Be Done? A Call for USPTO Reform
The solution isn’t to discourage trademarking altogether – protecting legitimate brand identity is crucial. However, the USPTO needs to adopt a more rigorous approach to evaluating trademark applications, particularly those involving generic terms or common elements. Here are a few key steps:
- Increased Scrutiny of Generic Marks: The USPTO must prioritize rejecting applications for trademarks that are inherently generic or descriptive.
- Strengthened Opposition Procedures: Making it easier and more affordable for individuals and small businesses to oppose questionable trademark applications.
- Clearer Guidelines: Providing clearer guidelines on what constitutes a protectable trademark, reducing ambiguity and subjective interpretations.
The Aikman-Jackson settlement, while resolving a specific dispute, underscores a systemic problem. The current trademark system, if left unchecked, risks becoming a tool for stifling innovation and empowering large corporations at the expense of smaller players. Protecting the public domain and fostering a competitive marketplace requires a more balanced and sensible approach to trademark law.
What are your predictions for the future of trademark law and its impact on small businesses? Share your thoughts in the comments below!
