Trevor Little

The latest available data from Lex Machina estimates that 3,529 trademark litigation suits will be filed in the United States in 2016. If so, the level of filings will be the lowest since 2001. For law firms, competition for the trademark litigation dollar seems set to intensify.

This week on our sister title, IAM, Richard Lloyd reported that the latest estimates from Lex Machina suggest that US patent lawsuits are set to drop dramatically in 2016. He noted that, if that prediction is accurate then it would mean that patent litigation will be at a level not seen since 2011. Similarly, copyright cases are expected to drop to 2013 levels, after six years of consecutive rises. The picture for trademarks is more marked.

In May, Lex Machina’s Trademark Report 2015 found that trademark litigation appeared to be on the slide, with 795 cases filed in the first quarter of this year– the lowest since the start of 2009 and down almost 10% on the same quarter last year. That figure has subsequently risen a little (832 are now reported for Q1), but it still represents a significant drop.

This downward trend is expected to be reflected in the total number of filings across the year. In the year to date, 3,130 trademark litigation cases have been filed – compared to 3,276 in the comparative period in 2015 and 4,051 in 2014. Based on filing trends and data, Lex Machina further estimates that, by year end, 3,529 trademark cases will have been filed.  If that prediction is filed, it will represent a 16-year low.

The number of trademark cases filed by year is as follows (click for full-size):

Drilling down to court level, the Central District of California and Southern District of New York – the courts with the most trademark cases over the past decade - are on course for 10 year lows. In the year to date, the Central District of California has seen 415 trademark cases filed and is expected to reach 470 for the year (last year it registered 503, significantly down from 606 in 2014). Meanwhile, the Southern District of New York has 202 filings to date in 2016, and is estimated to reach 230 in total – in 2015 the total number was 284. By contrast, a winner this year is the Southern District of Florida, which has had 317 cases to date (already a ten year high) and is on course to hit 343 filings.

All told, though, the picture is one of decline in filings. As we noted in May, this suggests that corporate teams are taking a more conservative, or strategic, approach to the big ticket expense of litigation. For law firms that rely on litigation work, it suggests that things are getting more competitive. However, if trademark owners are indeed seeking alternative enforcement and negotiation strategies, there should be opportunities for savvy lawyers seeking to better service clients. 


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