Is the trademark litigation slump over?

Analysis of the data from Lex Machina as of 9 May suggests that US trademark litigation filing numbers will be flat in 2018 – potentially ending a four-year decline.

The trend in trademark litigation filings has been almost consistently downward since 2010 – the one notable exception being 2014, when (in the third quarter) the National Football League was hit with almost 500 suits, mostly related to a single dispute between the league and former players over use of player likenesses. Last year represented a nine-year low and the first time in a decade that filings dipped below 4,000 for the year.

Based on the filings made to date in 2018, Lex Machina predicts that the number of trademark actions will remain flat this year (with 3,813 expected, compared to 3,810 in 2017).

Turning to litigation venues, the Central District of California has led the rankings table for “most trademark cases filed by year” for a decade and is on track to retain the crown again this year. The top 10 venues for trademark cases filed in 2018 as of 9 May are as follows (2017 total cases in brackets):

1. Central District of California – 205 (520)

2. Northern District of Illinois – 101 (262)

3. Southern District of New York – 98 (289)

4. Southern District of Florida – 91 (244)

5. Northern District of California – 63 (199)

6. District of New Jersey – 51 (130)

7. Middle District of Florida – 41 (115)

8. Eastern District of New York – 33 (107)

9. Northern District of Ohio – 32 (52)

10. Western District of Washington – 26 (59)

If the year ends as predicted, 2018 will be the second sub-4,000 filings year in a decade. While not a return to previous highs, this figure would suggest that the long-term decline in litigation filings may finally have been arrested.

Figure 2: US trademark litigation filings