Tuesday, November 01, 2011

"Occupy" could become a trademark associated with the new protest movement; more on my "do ask do tell"

Protester-entrepreneur (an oxymoron?) Robert Maresca (with spouse) wants to trademark the various “Occupy” movement names (“Occupy Wall Street”, “Occupy D.C.”, etc.). The trademarks would apply to various promotional items like T-shirts and silk screens.  The news story is here.  CNN has a similar story by Kristina Sgeuglia, mentioned yesterday during the morning on the network, here.

Maresca says he will turn over all money made from selling items to fund the Occupy movement.

It’s perfectly legitimate for “non-profits” to own trademarks.  (Consider “Blue Cross, Blue Shield”).   The important concept is that the entity uses the mark in commerce (even for non-profit purposes), such as goods or services.
As a phrase that identifies a political protest movement of concept, “Occupy Wall Street” is not trademarkable.  But if it sells goods to help its cause, it can set up a brand name for the goods, which could well be “Occupy”.  There is some legitimate question as to whether common English words should be monopolized as trademarks (or wordmarks).  But typically a trademark is supposed to apply to only one line of business at a time.

Once registered, Maresca or any similar holder of a trademark for “Occupy” could file against other entities for prospective dilution, according to the 2006 law.

There could be questions as to how “commercial” a usage really is.  If a proposed trademark holder can process his or her own orders and credit card operations (under stricter security guidelines) on its own server, rather than outsourcing to Amazon, for example, does it have a stronger claim? (either with the USPTO or later in court).  I wonder.  The ability to do so could be evidence of economic scale commensurate with a trademark claim.

The main entities that could be affected could be domain name holders who don’t claim trademarks, for other purposes than commercial (political speech).  But ICANN generally supports domain name holders who registered in “good faith”, commercial or not.

As for me: I’ve used “do ask dot tell” for the title of two (now three) of my books since 1997, and as a domain name since 1999.  To date, USPTO shows only one attempt to trademark the phrase, serial 74700025, dead, abandoned June 13, 1996, originally filed by Robert J. Powers (author of two books “A Manager’s Guide” and “A Family and Friend’s Guide” to sexual orientation, in the mid 1990s). The marks would have been used for “buttons, paper weights, stickers, writing instruments, notepads, banners, promotional materials for books and workshops”.

I have thought about the possible use of “Do Ask Do Tell” as a movie distribution company for independent film, especially films have to do with LGBT issues, most notably the historic fight over the military gay ban, or “don’t ask don’t tell” policy, and concentric issues. I have had at least one brief business discussion on the idea (yesterday).

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