Apparently there is a finite number of good trademarks, and we are running out of them. Two New York University School of Law professors published an article it the Harvard Law Review titled “Are we running out of trademarks? An empirical study of trademark depletion and congestion.” The authors acknowledge that “[f]irms can obviously coin new words or phrases of ever-increasing length to avoid conflicts with already-registered marks.” But then say “it is just as obvious that given the limits of human cognition and communication, incumbent firms using shorter, less complex, more familiar, more easily pronounced, and more evocative marks will enjoy a significant competitive advantage over new firms that must resort to brand names that are less effective along these dimensions and for that reason remain unclaimed.”
In other words, according to the authors of this article, terms found in a dictionary are “good trademarks” because consumers have some familiarity with the terms. Anything else is a bad trademark because the trademark owner needs to expend some effort to help the consumer understand the brand. If the authors were talking about domain names, I would agree that there are a finite number of goods domain names because of the nature of how consumers search the Internet. But trademarks are an entirely different animal than a domain name.
Ask any naming professional if they recommend their clients adopt dictionary terms as trademarks that describe the goods or services being offered and they would say never. They certainly would not agree that those are good trademarks. The trademark protection issues involving these marks notwithstanding, descriptive marks make it difficult to stand out from the crowd. Any firm that adopts a known term for goods or services other than what is identified in a dictionary definition, will need to expend the effort to educate consumers about the connection between the mark and the goods or services. The same is true of a coined term. That does not make the coined mark a bad trademark. In fact, it may grow to be a famous mark. I am sure KODAK does not regret the choice it made to coin a trademark.
The authors also focus only on word marks when so much other matter functions as “good” trademarks. Indeed, the Lanham Act specifically states that any matter can function as trademark so long as it is capable of identifying the source of the goods or services. Designs, for example, are intimately involved in brand strategy and relied upon as much if not more than the words themselves. We know from experience that toddlers recognize logos before they are able to read. I doubt the authors would argue we are at risk of running out of good artistic designs.
Because the term on a registered trademark can theoretically be forever, it can make the naming process more challenging. But that is more reason to engage a naming professional early in the company or product lifecycle.