Trademark counsel may increasingly feel they are tilting at windmills when advising clients seeking popular-sounding or trendy marks. For instance, the prefix “eco” and adjective “green” are being used in connection with services, products, ad campaigns and domain names at an ever increasing rate. The popularity of these marks presents a paradox for the trademark practitioner: Trademarks utilizing popular components are often the most difficult to protect because of distinctiveness objections or challenges, yet because they are chosen from a crowded field of similar marks, they may be likely to draw adverse third-party infringement claims. Trademark counsel may be wise to advise the client to buck the trend and select more clearly distinctive, though possibly less trendy, nomenclature.

During the past decade, companies and individuals have filed thousands of applications for trademarks with environmentally friendly attributes. An unscientific review of the U.S. Patent and Trademark Office (PTO) records shows a significant increase in applications for marks containing “green” and “eco.” The ecologically friendly terms “green” and “eco” were included in approximately 2,500 and 1,200 applications, respectively, during the 1990s. From Jan. 1, 2000, through Jan. 1, 2010, those numbers increased to more than 11,000 for “green” and just more than 4,000 for “eco,” growth that markedly exceeded the growth in PTO trademark filings generally in that period.

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