Could a Surge in Trademark Applications Delay Your Food or Beverage Business Launch?

“The USTPO says it is taking steps to deal with the trademark backlog by implementing internal system enhancements, hiring more examining attorneys and staff, and finding ways to increase efficiency in its processes. In the meantime, new restaurants or food businesses should try to mitigate the effects.”

trademark backlog - launching a new restaurant or food or beverage company, your plate is likely full enough. To add to the pile, this last year was no stranger to delays and pivots for businesses. And we’ve been noticing one more delay that may impact your new venture.

Last month, the United States Patent and Trademark Office (USPTO) posted a blog entry on its website addressing a development that trademark practitioners have been aware of for months: trademark applications have surged to unprecedented levels. This is causing a substantial delay in reviewing new trademark applications and other actions on the part of the USPTO. The impact of these delays on new restaurant and food businesses, among other industries, may be significant.


Surge Results in Delays

According to the blog post, as of June 2021 the increase in USPTO trademark applications is roughly 63% over last year, which translates to about 211,000 more applications. And in December 2020 alone, the USPTO received 92,608 trademark applications, an increase of 172% over December 2019! Possible reasons for this surge offered by the USPTO are a) an increase in applications by foreign (mainly Chinese) applicants, and b) a rise in e-commerce during the COVID-19 pandemic, resulting in new business platforms and, correspondingly, new names and logos to be trademarked. The surge has doubled the number of applications waiting to be examined and increased waiting times at various stages in the USPTO process. As a result, trademark applicants find themselves having to wait longer for an initial review of their application, receipt of an office action, processing of their responses to office actions, and review of post-registration filings.

Historically, a newly filed trademark application would get examined by a USPTO attorney 3-4 months after the application was filed. For a new restaurant getting ready to open, or a new food product preparing to hit the shelves, this timing usually worked fairly well, as trademark applicants would generally receive word as to whether their desired trademark was on track to be approved well before they needed to move forward with signage, menus, branding, packaging, website design, etc. If their trademark application encountered an obstacle at the USPTO, in many cases there was still time for the trademark applicant to figure out a resolution without significantly delaying their planned launch timing, whether that meant tweaking the mark in a way that would make it acceptable to the USPTO, seeking a consent agreement from a third party whose registered trademark was posing an obstacle, or abandoning the original mark and going with a new mark entirely.

Now, the “Current Trademark Processing Wait Times” dashboard on the USPTO website indicates a wait time of 5.2 months for the initial review of a new trademark application. However, it is not uncommon for trademark applicants and practitioners to experience even longer wait times of 6-7 months, or even more.

Don’t Get Caught in a Holding Pattern

This is putting some new restaurant owners and food product manufacturers into a frustrating holding pattern, as some business owners do not want to, or cannot, launch their new venture unless and until they have received assurance that the name and/or logo of their new business is on track for approval by the USPTO.

The USTPO says it is taking steps to deal with the backlog by implementing internal system enhancements, hiring more examining attorneys and staff, and finding ways to increase efficiency in its processes. Hopefully these measures will reduce, or at least level off, the current backlog. In the meantime, however, new restaurants or food businesses should try to mitigate the effects of the USPTO’s backlog on the launch of their business. Business owners would be wise to take all or some of the following steps:

  • Start the process of engaging a trademark lawyer and conducting clearance on the desired mark(s) as early as possible prior to the planned launch date.
  • File the trademark application as soon as a name is settled upon and finalized.
  • Trademark applications may be filed on an “intent to use basis,” and a specimen of use may be submitted to the USPTO later, after use in commerce has begun. Since trademark applications are examined by the USPTO in the order they are received, waiting to file the application could result in another applicant beating a business owner to the punch with the same or similar name.
  • If budget permits, file additional trademark applications for one or more backup names, in addition to the first-choice name. That way, if the first-choice trademark application ends up encountering a substantive obstacle, business owners will have the option to fall back upon the second-choice name if it has been approved by the USPTO, rather than having to start the trademarking process all over again at that late juncture.

Taking the above steps will go a long way toward alleviating business owners’ anxiety caused by trademark examination delays by the USPTO. Otherwise, new restaurants and food businesses that have filed a trademark application for the name and/or logo of their new venture will need to face the fact that they may not know whether their trademark application will be approved or not by the time they are ready to launch.

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