Their study has zero empirics, is solved by the current system, and holds up to zero scrutiny – this is a direct indict of the core study their literature base stems from.

First, Beebe and Fromer’s argument lacks empirical support for their assumption that depletion and consumption force entrants to bear significant financial burdens. Beebe and Fromer cite news articles that quote entrepreneurs who have trouble naming new firms or products as their primary evidence.26 But this evidence alone cannot show how trademark depletion actually affects the average costs of entry. There might be ways to at least approximate the financial costs: one branding guide estimates the low-end cost of name development and logo creation at $13,500.27 What remain untested are the different financial costs that may result depending on the particular trademark class, the size of the market entrant, and the depletion or congestion level of the class.

Further empirical research would likely fill in these gaps in the research. For example, interviews with branding agents (or branding scholars) might clarify how much of these trademark-related financial costs to entry is driven by searching through existing marks, whether the cost is higher in more depleted classes, and how it has changed over time. Empirical research should also take into account the possible ameliorating effect of technological changes, including the increasing ease of using search engines to quickly and cheaply test the distinctiveness of potential marks.28 In addition, technological developments have reduced branding-related entry costs by making it easier to search existing registered marks29 or pay for low-cost searches,30 and by allowing firms to crowdsource logo design,31 connect online with low-cost freelance designers,32 or design their own logos.33

Another way to empirically tackle the problem of measuring the costs of depletion and congestion may be through comparisons with other countries.34 The United States is an outlier in requiring trademark use to maintain registration, so if depletion and congestion “have reached chronic levels”35 in the United States, trademark systems in other countries should presumably be on life support. If Beebe and Fromer are correct, one would thus expect trademark development costs to be a significant barrier to entry outside the United States. There is a vast literature on how variations in regulatory barriers affect entrepreneurship across countries;36 investigating how trademarks affect these barriers seems like an important avenue for further research.

Empirical work is also needed to understand the other hypothesized cost to new entrants: that after bearing this “ever-greater cost” to find a usable mark, applicants are forced to settle for “ever-less benefit.”37 Beebe and Fromer argue with some support from the branding literature that the areas of greatest trademark depletion and congestion — common words and neologisms — are also those with the most desirable trademarks.38 But it does not necessarily follow that a firm’s inability to use a common word or short neologism, such that it is left with a more complex mark than it initially desired, will have a significant impact on the firm’s value. The branding literature on “good”39 trademarks that Beebe and Fromer discuss does little to answer this question.

Whether more complex marks actually reduce firm value is linked to the corresponding concern for consumer welfare: do these marks in fact significantly increase search costs for consumers? This is a cogent hypothesis, as is the idea that congestion will harm consumers by blurring the distinctiveness of nonfamous marks. But given the difficulty scholars have had finding any concrete harm caused by blurring of famous marks,40 it seems worth empirical study. Furthermore, to determine whether reforms such as decluttering the register of underused marks will have any impact, it is necessary to determine how much of any consumer harm from depletion and congestion is caused by these inactive marks as opposed to a growing number of active brands.

Unfortunately, the most concrete evidence of consumer harm Beebe and Fromer present seems insufficient to take as proof that the current trademark regime reduces consumer welfare. The Article argues that “trademark congestion can literally kill”41 because “between eight and twenty-five percent of medication errors are attributed to name confusion.”42 There is reason to doubt this statistic.43 But in any case, the pharmaceutical industry is not a good illustration of the harms Beebe and Fromer are focused on; as they note, it has low rates of congestion and depletion, and different branding practices.44 Given the high non-trademark-related barriers to entry, it seems unlikely that reforms related to trademark pricing or use requirements would have much effect. Rather, any harms from drug-name confusion seem better addressed by the computer systems that are already being used to tackle this concern.45

Another reason to exercise caution before implementing major trademark reforms is that markets may already mitigate at least some of the costs of depletion and congestion. For example, Beebe and Fromer suggest that “trademark law can more generally learn” from the Food and Drug Administration’s efforts in the pharmaceutical industry.46 Perhaps one lesson from the pharmaceutical industry is that many harms of congestion and depletion can be addressed without any change in trademark law itself. If consumers have trouble keeping track of the exploding number of craft beers,47 they can keep track of favorites with the Untappd app — including by scanning barcodes rather than searching by name.48 Consumers can scan barcodes or take pictures of other products to see reviews and prices with shopping tools such as the Amazon app.49 The drawbacks of longer brand names also are less significant if consumers simply search for the desired product type using websites like Amazon or Google and then choose a product based on its prominence in the search results, giving them little reason to pay attention to the brand name.

The market for domain names may be instructive. As Beebe and Fromer note, appealing domain names are limited.50 But they also recognize that technological developments such as the availability of internet search tools and the creation of “new top-level domains” have alleviated many of the problems associated with the limited supply of the most desirable domain names.51 Similarly, new technologies may be able to reduce the negative externalities of constraints on attractive trademarks: if consumers can find products with unusual trademarks through search engines, then firms can decrease attempts to find the most desirable trademarks because they know consumers have alternative effective means to identify their goods.

In sum, there is not yet any concrete evidence that trademark depletion and congestion impose any significant harms for either firms or consumers. Without such evidence, reforming the trademark system seems premature and likely unresponsive to the actual challenges firms and consumers face. Of course, one response might be that policy reforms are still warranted simply to counteract a plausible risk of harm. But that would only be true if there were no offsetting benefits — something Beebe and Fromer never consider.