[The IPKat] [Guest post] The increasing trade mark congestion and the phenomenon of cluttering: a new analysis for an old issue

[Eleonora Rosati]

[Guest post] The increasing trade mark congestion and the phenomenon of cluttering: a new analysis for an old issue

 Eleonora Rosati Sunday, September 28, 2025 - Andrea Rossi, cluttering, Guest post, SkyKick, trade mark congestion, trade marks

The IPKat has received and is pleased to host the following opinion by Katfriend Andrea Rossi (UK Intellectual Property Office), addressing the vexed question: Are we running out of trade marks? Here’s what he has to say.

The increasing trade mark congestion and the phenomenon of cluttering: a new analysis for an old issue

by Andrea Rossi

This year the EUIPO marked 5 million EU trade marks (EUTMs) and EU designs (EUDs) applications filed since its foundation in 1994 (see here). In 2024, the UK IPO processed 173,180 trade mark applications, a 5.8% increase compared to 2023 (all the 2024 figures available here). This is particularly notable given that the EUIPO received 180,497 EUTM filings in the same year (see the full data here). The UK also led in the number of designations in international trade mark applications filed at WIPO in 2024, with a total of 28,877 (see here the full report of facts and figures on use of the Madrid System in 2024). Globally, WIPO’s sources indicate that, after two consecutive years of decline, the total number of international trade mark applications filed under WIPO’s Madrid System returned to growth in 2024, reaching 65,000 applications, a 1.2% increase from the previous year.

Whilst I note the UK IPO’s significant increase in trade mark flings is likely the result of the extraordinary (if not unique) events that occurred in the last few years (i.e., the COVID-19 pandemic and the UK’s exit from the European Union), most IP offices globally have also seen an increase in domestic trade mark filings, albeit at a lower rate. For instance, the USPTO recorded an increase in total trade mark filings, rising from 737,018 filings in 2023 to 767,138 in 2024. That same year, India’s Trademark Office reported 540,000 trade mark fillings, a 9.3% increase compared to the previous year. The Korean Intellectual Property Office (KIPO) received 259,078 trade mark applications in 2022 which rose by 10.2% in 2023 to 285,637. Between 2019 and 2023, KIPO saw a cumulative increase of 28.9% in trade mark filings (KIPO’s 2023 Annual Report available here). In contrast, China’s Trademark office reported a 1.8% decline in trade mark applications in 2024, although registrations during the same year rose by 14.24%.

Looking at this data, I find myself wondering if the national and EU trade mark systems will reach a point of saturation making the filing of new trade marks impossible or highly difficult. I may come across as a pessimist, but I like to think I am just an optimist with experience. As I researched this topic, I realised my initial impression was not far off. Future prospects for new trade mark registrations and the upkeep of existing rights appear bleak.

The increased filing and subsequent registration of trade marks, defined as trade mark “congestion” (trade marks registered by increasingly more right holders), lead to trade mark “depletion” (less and less trade mark free to use), and can also result in trade mark “cluttering” (i.e., registers containing a large number of unused trade marks or trade marks registered with overly-broad and unused specifications). Whilst trade mark congestion and its related effects are clearly an issue, to what extent does it impact the trade mark systems and who are those most affected by it?

Trade mark filings and litigation rates at IP offices

The first point to consider is that a higher number of trade marks on the registers would typically lead to more actions before IP offices. However, the data indicates that litigation has not increased at the same pace as trade mark demand and, in some cases, has even declined.

The data provided by the UK IPO is particularly significant, as trade mark filings have risen sharply in recent years. However, when examining the period from 2014 to 2024, the ratio of oppositions to applications has remained largely stable, with only a slight increase (Table 1). Meanwhile, the ratio of cancellation actions, which include both revocation and invalidity, has actually decreased slightly (Table 2).

Turning to the EUIPO and reviewing data from the past decade (2014–2024), in 2014 the office received 117,253 EUTM applications, alongside 15,658 opposition actions, resulting in an opposition ratio of 13.3%. That year also saw 1,407 cancellation actions filed, representing a cancellation ratio of 1.19%. By 2024, EUTM applications had risen to 180,497, with 18,068 oppositions filed (a reduced ratio of 10.01%) and 2,220 cancellation actions (a slightly increased ratio of 1.22%). Thus, these figures suggest that, at EU level, over the years, the opposition ratio has decreased, while the cancellation ratio has remained relatively stable.

Overall, the data seems to indicate that the effects of trade mark congestion and the phenomenon of cluttering, at least in the UK and EU, do not appear to directly impact litigation rates before IP offices.

Trade mark congestion, cluttering and their impact on stakeholders

Turning to other areas of trade mark law, evidence seem to show that trade mark congestion and cluttering have impacted pre-filing preparatory works carried out by attorneys or other trade mark professionals. However, also when looking at the stakeholders’ views on trade mark congestion and cluttering, these are not unanimously perceived as an issue. For example, in 2011 the Max Planck Institute reported that, when interviewed on the phenomenon of cluttering, 41% of agents and 21% of proprietors identified cluttering as an issue at EU level (see paragraph [1.36] of the study available here). On a UK level, in 2015 the UK IPO interviewed a number of UK-based expert attorneys on the matter of cluttering. If, on the one hand, most attorneys shared the view that cluttering has become a real issue causing, for example, the reviewing of watch reports to became more complex with resulting higher costs for their clients, on the other hand, some representatives welcomed the possibility to file overly-broad applications in their clients’ interests.

Another noteworthy point from the UK IPO report is that, beyond overly broad registrations contributing to clutter on the UK IP register, the five-year waiting period before a non-use revocation action can be filed further delays efforts by prospective applicants. This issue is compounded by the presence of registered EUTMs, especially those with overly-broad specifications, that are not used in one or more domestic markets, adding to the overall congestion.

Cluttering and recent case law

The issue of trade mark cluttering and overly-broad filings remains highly relevant, prompting both the Court of Justice of the European Union (CJEU) and the UK Supreme Court in SkyKick (see respectively here and here) to address overly-broad applications and whether it constitutes bad faith. These rulings affirmed that right holders cannot rely on earlier rights with broad specifications that do not reflect their actual commercial activity, and that invalidity may be declared, on grounds of bad faith, for goods or services the owner has no genuine intention of using. In response to these rulings, the UK IPO revised its examination practice, instructing ex-parte examiners to investigate, ex officio, specifications that are “manifestly and self-evidently broad” and may have been filed without any intention of use.

Conclusion

The data shows that, although trade mark filings have increased over the years and registers worldwide are rapidly filling up, this trend has not directly affected litigation rates at IP offices, at least in the UK and EU. Instead, trade mark congestion and cluttering appear to have a greater impact on the pre-filing phase, requiring attorneys to conduct increasingly complex clearance searches and related clearing activities. This likely results in higher costs for prospective applicants seeking marks left free for registration. As a consequence, while businesses with large trade mark portfolios can typically afford these additional expenses, trade mark congestion and cluttering are likely to pose greater challenges for smaller businesses with more limited resources.

Regarding the issue of register cluttering, it has been reported that EUTMs registered but not used within domestic trade mark systems contribute to their congestion. In the UK, as we approach five years since IP Completion Day (31 December 2021) and the influx of UK comparable marks from the EU, it will be interesting to see the number of non-use cancellation actions filed against UK comparable marks that have not been used in the UK during this period. This could provide valuable insight into the extent to which unused EUTMs contribute to cluttering in domestic trade mark systems.

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