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As of July 2021, the backlog of pending trademarks at the USPTO had surpassed 900,000. Tackling this is high on the agenda of the trademark commissioner, who is looking to bring the figure down by implementing new technology solutions and hiring new staff. The problem stems in part from a dramatic increase in filings from China, in respect of which concerns of improper behaviour prompted the adoption of new rules in 2019 requiring US representation for overseas applicants. But more potentially needs to be done, with the US Department of Commerce recently calling out the USPTO for its ineffectiveness in dealing with fraudulent and inaccurate filings. As a result of the backlog, it is taking six-plus months for applications to be assigned to an examining attorney. The successful candidate for the role of USPTO director – a nomination for which is shortly expected from the Biden administration – will need to sharpen the organisation’s focus on supporting trademark stakeholders. On the litigation front, US trademark case filings fell to a 10-year low in 2020, following a 14% decline from the previous year; the drop has been precipitous, given that the peak number of filings was recorded in 2015. However, mass counterfeiting cases – those filed against large numbers of defendants – have significantly increased, representing 16% of overall filings in 2020, up from 3% in 2019. There have lately been calls for US online marketplaces and social media sites to be added to the Office of the US Trade Representative’s (USTR) Notorious Markets List, which identifies markets engaged in or facilitating significant counterfeiting activities. In response, various platforms have been highlighting their anti-counterfeiting initiatives in submissions to the USTR’s public consultation on the forthcoming list.
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