Trademark Shenanigans: Occupy the PTO

November 16, 2011, 12:30 PM

Question: What do the Navy Seals and Occupy Wall Street have in common?

Answer: Trademark envy.

In an earlier post I commented on a situation in which a number of would be owners of trademark rights in NAVY SEALS and SEAL TEAM names filed applications with the U.S. Patent and Trademark Office, after the real Seals succeeded in taking down Osama Bin Laden. My hope then was that those entrepreneurial attempts to capitalize on the media attention paid to Seal Team 6 would fail, and that the U.S. Navy would end up as the sole owner of these names. That has pretty much come to pass, as all of the trademark applications noted in the previous posting except for two filed by the U.S. Navy have either been abandoned or run into problems.

Now we have another name getting the same kind of media attention as the Navy Seals did earlier this year Occupy Wall Street. Just as happened then with the Navy Seals names, a number of applications have been filed seeking federal trademark rights in Occupy Wall street or variations of that name. Prior reports indicate that two of those applications, both for Occupy Wall street, were filed hours apart on the same day, October 24, 2011. Of those two applications, the one that was filed first was by a private company seeking trademark rights in OCCUPY WALL STREET as a brand name for a variety of products, including such things as backpacks and t-shirts and other clothing items; whereas the later-filed application covering some of the same products was filed by participants in the actual Occupy Wall Street protest.

To the extent of overlap between the products covered by those two applications, the one that was filed first will be first in line for consideration by the U.S. Patent and Trademark Office (PTO). So, ironically, the applicant whose actions have resulted in the name's prominence and popularity will have to wait for their application to be considered until the PTO has completed its consideration of the one filed earlier by a capitalist-minded company. Moreover, both of these October 24 applications may have to wait for the PTO to process and rule on another one for the same types of products for the name OCCUPY WALL ST., which was filed by yet another party on October 18, 2011.

In addition to these three applications, others have been filed since the protests began in mid-September, attempting to obtain rights in the word OCCUPY or variations of it. These include OCCUPY D.C. 2012, EVERYWHERE I GO I OCCUPY and my personal favorite, OCCUPY LAMBEAU CAMP RANDALL WATER STREET KK STATE STREET PACKARD AVENUE RUSH STREET.

Unlike the Navy Seals trademark situation, which appears to be marching towards an orderly and proper outcome, the future of the competing OCCUPY trademark applications will most likely be chaotic, maybe even anarchic.

Being obliged to impart at least one insight on trademark law from all of this, it is that both the Navy Seals and Occupy WALL STREET trademark application/registration situations illustrate that to claim and obtain trademark rights in a name, phrase, design or symbol, one does not have to be the originator of it. Instead, these rights derive from first use of the mark in commerce for particular goods or services, and/or being the first to file an application with the PTO to register as the owner of those rights. -Robert E. Smartchan