Increasing the protection of trademarks, over burdens an already near collapsed agency from fraudulent filings and protects their registration.

Nonsense marks do not look like trademarks typically look or work the way the trademark system assumes they are supposed to. But because of that quality, rather than in spite of it, nonsense marks easily meet all of the formal requirements for trademark registration and may even receive stronger protections than do many more typical marks.60 Put another way, within the existing registration system, everything but common sense indicates that these words should be valid trademarks. II. The Harms of Nonsense Marks Though nonsense marks are at odds with the purposes of the trademark system, the ease with which they qualify for registration is not necessarily a problem in and of itself. Unlike marks that might confuse or deceive about a product’s source of origin, it does not seem that the presence of nonsense marks in the market will directly harm consumers or lead them to buy products they do not intend to. Since consumer protection has become the guiding normative justification for trademark law,61 the question for nonsense marks, as it is for other nontraditional proposed marks, is why not offer trademark protection?62 However, as scholars like Professors Rebecca Tushnet and Mark McKenna have noted, trademark law’s primary focus on consumer protection is both recent63 and limited.64 Any choice to expand trademark protection in a new way can impose burdens beyond those for consumers, including burdens on the USPTO, on competitors, and on the trademark system in general. It is along these metrics that the existence of nonsense marks on the Register presents the potential for tangible harm.

First, and most basically, applications for nonsense marks place further stress on an already-strained USPTO. Trademark applications have increased continually in recent years. In 2019, the USPTO received 485,444 applications, the tenth year in a row in which the number of applications broke the previous record.65 This means that USPTO examiners are receiving thousands of applications a day and are tasked with assessing whether they should proceed to the Register. Even under normal circumstances, “maintaining the registration system requires the investment of substantial government and private resources.”66 But faced with the twin problems of fraudulent filings and unused marks that remain on the Register, the USPTO has instituted reforms aimed at ensuring that the Register consists only of marks that are currently, actually being used in commerce.67 While these are welcome changes, they consume additional time and resources of the USPTO. Against this backdrop, when the owners of nonsense marks, many of whom are not seeking the traditional benefits of trademark registration, file applications with the USPTO, they impose a further burden on the agency. Indeed, examiners, wary of fraudulent marks from China in general, may spend even more time than usual reviewing nonsense marks from Chinese companies.68 By calling on the resources of the USPTO to achieve their owners’ Amazon-related objectives, nonsense-mark applications themselves impose costs on the USPTO, as well as on other applicants affected by examiners’ greater caseloads and slower review processes.69

Once nonsense marks make it onto the Register, they have the potential to inflict further harm, particularly on traditional mark owners. While trademark registration imparts many benefits to mark owners, its primary public benefit is “in the value of the trademark register as a source of information,” allowing businesses to “discover quickly and cheaply which signs third parties already have claimed.”70 To avoid opposition from the USPTO or other mark owners, those seeking to register new marks must avoid words that might be seen as confusingly similar to existing marks.71 This is where the anticompetitive potential of registered nonsense marks begins. While traditional mark owners probably will not be interested in nonsense marks, at least some of these marks are just a couple of letters off from “working” in English. For example, MAJCF is quite close to MAJI, while JANRSTIC is not far from the more viable JANSTICK. If JANSTICK were already on the Register, the mark owner might be compelled to invest time and resources arguing that the similar but nonsensical mark presents a likelihood of confusion. Worse, if nonsense marks make it onto the Register first, potential registrants, already facing a diminishing number of “good,” available trademarks,72 might be hesitant to apply with their marks out of fear of a likelihood-of-confusion rejection.73 This chilling effect would be particularly acute for smaller businesses, which may not be able to afford a potentially lengthy and expensive registration battle.74

Compounding the problem, trademarks that appear on the Register are afforded a “robust presumption of rights that is incredibly difficult to unravel,”75 including a presumption of validity.76 These protections would make it more difficult for would-be users of similar marks to challenge the nonsense marks’ position on the Register or prevail in a lawsuit. And, most cynically, owners of nonsense marks might use their registrations in overtly anticompetitive ways, bringing lawsuits against or sending cease-and-desist letters to users of arguably similar marks in bad faith, in order to extort money from those users.77 Thus, in spite of their relative uselessness as traditional source signifiers, nonsense marks on the Register have the potential to chill producers seeking to develop marks in an increasingly crowded field, to prompt costly litigation, and even to be weaponized by bad faith actors taking advantage of the trademark system. These anticompetitive possibilities can and should be the concern of trademark law.78

Finally, nonsense marks place considerable strain on the metrics that trademark law relies on to function. As an initial matter, and as suggested above, nonsense marks challenge the ability of the Abercrombie spectrum — thought of as “the most black-letter of all the black-letter trademark law”79 — to identify the value of and consumer reaction to different categories of marks. Though Abercrombie may be an imperfect standard to begin with,80 it remains a foundation of trademark law, frequently relied on by courts and USPTO examiners.81 Nonsense marks on the Register deepen the cracks in the foundation of one of trademark law’s major sorting mechanisms, calling into question Abercrombie’s legitimacy as an indicator of what makes a “strong” mark and leaving it less stable for those who look to it for guidance.