Cluttering and Non-Use of Trade Marks in Europe

Abstract

The 2011 “Study on the Overall Functioning of the European Trade Mark System” by the Max Planck Institute was commissioned by the European Commission and presented survey-based evidence that UK trade mark attorneys/agents perceive the existence of marks on registers that are partly or wholly unused by their owners – so called “cluttering” - to be a problem. Following on from that study, the UK’s IPO was keen to better understand the extent of cluttering within the UK and European register. IPO therefore commissioned this report on cluttering and non-use of trade marks in Europe in late 2013 with the objective of building evidence to inform debate on the prevalence of trade marks that are partially or wholly unused by their owners. It is equally important to note what this study does not purport to do. This study does not investigate causal relationships to explain how non-use arises. It does not examine the monetised economic impacts (the costs and benefits) of the current systems for participants. Nor does this study aim to determine whether an ex officio requirement for submission of proof of use is cost-effective. Rather, it shows that there are noticeable differences between US and European registers in the number of goods claimed for the same mark. Further research would be needed to examine whether unused trade mark registrations can increase search costs, and whether imposition of proof of use tests ex officio may be useful or unacceptably burdensome.