Review of Intellectual Property Law Blog

Trademarking Social Change?

By Ian Rubenstrunk on Monday, October 31st, 2011
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Regardless of your affection for a particular news outlet, over the last couple weeks the “Occupy Wall Street” movement has seen it’s fair share of coverage. Recently a couple from Long Island applied to the PTO, attempting to Trademark “Occupy Wall St.” Once again ignoring the political stigma surrounding the movement, this story raises a lot of questions for the intellectual property community.

The story has been credited to first being reported by the Smoking Gun. In the article, the husband and wife looking to trademark “Occupy Wall St.” said they intend on selling various items from t-shirts to hobo bags (insert witty joke here).

I see a number of notable items with this particular action taken by the couple, for example:

-How is an out of work couple going to have the ability to find unauthorized uses and then afford to litigate them?

-How do they deal with the numerous people wearing/making t-shirts/posters, etc. with markers? (It seems rather counter intuitive, as has been pointed out, that someone would make a commercial gain off of a movement focused on attacking the very commercial nature of our economy)

-How quickly can they reasonably expect to produce these goods before the movement fades (as is inevitable with any fad)?

-Why did they choose “Occupy Wall St.” as opposed to “Occupy Wall Street”? (That alone gives me a gut reaction that the abbreviated version isn’t actually associated on account of the abbreviation, but that’s just one bloggers opinion.)

Without taking away from the very real implications the above questions have, it seems like there is a larger issue at play here. That is, when something originates from a grassroots or from a public movement, can/should it really be trademarked? One of the essential functions of a trademark is to identify a source or origin to a particular place. Can that happen with the “Occupy Wall Street” idea? Who exactly is “Occupy”? Where are the goods coming from? Who is monitoring their quality? Unless you had read the article, would you really know? The nature of the movement is such that it is nearly impossible to answer these questions. This ultimately seems to defeat the purpose of trademarking the phrase in the first place.

I would argue that movements like “Occupy Wall Street” merely shouldn’t be able to be registered marks due to their organic and very public development. Occupy Wall Street can’t really be attributed to one definable group of people, place, corporation, etc. any more than the “Tea Party.” These amorphous concepts are by their very nature inclusive to whoever would like to join. It’s not like “winning” for Charlie Sheen, or “C’mon man” to ESPN, things that have turned into social catch phrases but are clearly attributable to definite source.

Perhaps the most striking support for the idea that this is the husband’s comment that if he didn’t trademark it, someone else would. This only demonstrates the very universal ownership of the “Occupy Wall Street” movement. It is really just up for grabs, which poses the danger that the person who does in fact trademark the phrase has nothing to do with the movement itself, thus defeating the purpose of trademark law. However you may come down on the issue, there is certainly a debate to be had on how social movements in our technologically advanced world have a working relationship with trademark law.

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