The Annual Opposition Rate

As a follow-up to Counting Opposition Cases, this post presents some charts showing opposition activity over the past 25 years.

As explained in the previous post, any summary of opposition activity will depend on the way in which you count oppositions and on what qualifies as an “opposition”.  For example, the previous post  provided the following metrics as of 28-Jun-2021:

The 4 charts below show the annual time scale over which the foregoing events occurred:

Note the leftmost spike in the top left chart, suggesting that 4,583 prosecution history “Opposed” events occurred in 1993.  This appears to reflect an anomaly in CIPO’s recordation of a batch of earlier opposition events.  For example, the online trademark database record for application no. 588536 indicates that the application was advertised 1988-11-09, but the “Opposed” event is dated 1993-03-31 which is questionable.  Moreover, there is no Opposition History event record for the '536 application.  Almost 3,000 cases have 1993-03-31 “Opposed” event dates.  I am somewhat doubtful of the 1993 prosecution history “Opposed” event data, as far as the event dates are concerned.  This may also explain why CIPO’s trademark data includes very few pre-1993 opposition events.

I do not have similar concerns with the 1993 data presented in the other 3 charts because those charts reflect data derived from opposition history events—not prosecution history events.  To be clear, I am not suggesting a general problem with CIPO’s 1993 prosecution history event data; I am only questioning the 1993-03-31 event dates in a batch of about 3,000 “Opposed” prosecution history events.

The above charts reveal a general decline in opposition activity over at least the past decade, irrespective of how oppositions are counted or what qualifies as an “opposition”.  Note that the above charts have different vertical axis scales.  The next 4 charts plot the same data using the same vertical axis scale in all 4 charts, but without the 1993 data (which may be suspect as noted above).

The decline in opposition activity over at least the past decade is again apparent in the top left, top right and bottom left charts.  To put the decline in perspective, the annual opposition data can be compared to the corresponding annual filing and advertisement data charted below.  The charts below exclude filings which are not subject to advertisement (e.g. plant variety denominations and geographical indications) and exclude advertised applications which are not subject to opposition (e.g. Section 9 official/prohibited marks).

The left chart shows a steady increase in application filings¹ whereas the right chart reveals a significant decline in advertisements commencing in 2015.  The decline in advertisements corresponds generally to CIPO’s examination backlog, which I have discussed elsewhere².  The decline in opposition activity is at least partially due to the decline in advertisements.  Simply stated, if the number of cases subject to opposition goes down then so will the number of oppositions.

Although opposition activity appears to be declining in absolute terms, what about the annual rate at which advertised applications are opposed?  One way of expressing that rate is the number of Statements of Opposition filed per year, divided by the number of applications advertised in the same year.  The chart below presents the annual opposition rate in percentage terms (click to enlarge the image):

As can be seen, the opposition rate has held steady at about 2.3% over the past few years (2018-2020).  However, apart from 2014-2015, that rate is considerably lower than the rate seen in prior years.

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1 If filings continue at the current pace, then total filings in 2021 will exceed the 2020 total.^↩

2 See CIPO’s examination backlog—the Madrid effect, CIPO Addresses the Backlog and The Perils of Popularity.^↩