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As protests for “Occupy Wall Street” continue to take root and to “occupy” the media’s interest, so too do the trademarks related to the movement.

Many news articles and blog posts have covered the two competing USPTO trademark applications for OCCUPY WALL STREET (see below for some links). But these articles generally have failed to cover two related topics: the rash of other trademark applications related to the Occupy Wall Street themes, and the likelihood that many or most of these applications will not become registered. They are unlikely to be used to identify the source of any goods or services. Merely placing a slogan on the front of a tee shirt is not generally a trademark use; it is ornamental. See Trademark Manual of Examining Procedure (TMEP) § 1202.03. Words that appear merely on the front of tee shirts, apparel and bumper stickers are classic ornamental uses. Such uses are not truly indicated the source of a brand of the products as a use on the tag, label or packaging would tend to indicate.  See below for more details from the TMEP.

The rash of “Occupy Wall Street” themed trademarks includes the following:

  • Occupy D.C. 2012 – T-shirts
  • OCCUPY WALL STREET – All purpose sport bags; Backpacks; Backpacks; Backpacks, book bags, sports bags, bum bags, wallets and handbags; Beach bags; Canvas shopping bags; Carry-on bags; Gym bags; Hard-sided and soft-sided carry-on bags and gym bags; Overnight bags; Sack packs, namely, drawstring bags used as backpacks; Schoolchildren’s backpacks; Umbrellas; Footwear; Golf shirts; Hats; Headwear; Hooded sweat shirts; Polo shirts; Shirts; Short-sleeved or long-sleeved t-shirts; Sweatshirts; T-shirts; Tee shirts; Wearable garments and clothing, namely, shirts
  • 99 MOVEMENT – Entertainment related services intended to engage attention
  • occupy – Fabric sold as an integral component of finished clothing items, namely, all clothing(Based on Use in Commerce) Hats; Headwear; Jeans; Shirts; T-shirts for men women children; Wearable garments and clothing, namely, shirts
  • OCCUPY – Audio and video recordings featuring music and artistic performances; Audio books in the field of changing the status quo through protests, demonstrations, challenging laws and practices, assembly, and/or engaging the media and public discourse; Computer game software; Computer programs for video and computer games; Digital materials, namely, downloadable audio and audiovisual files, DVDs and CDs featuring content on changing the status quo through protests, demonstrations, challenging laws and practices, assembly, and/or engaging the media and public discourse; Digital media, namely, pre-recorded DVDs, downloadable audio and video recordings, and CDs featuring and promoting changing the status quo through protests, demonstrations, challenging laws and practices, assembly, and/or engaging the media and public discourse; Downloadable computer game software via a global computer network and wireless devices; Downloadable electronic publications in the nature of books, booklets and articles in the field of changing the status quo through protests, demonstrations, challenging laws and practices, assembly, and/or engaging the media and public discourse; Downloadable films and television programs featuring changing the status quo through protests, demonstrations, challenging laws and practices, assembly, and/or engaging the media and public discourse provided via a video-on-demand service; Downloadable image file containing artwork, text, audio, video, games and Internet Web links relating to sporting and cultural activities; Downloadable MP3 files, MP3 recordings, on-line discussion boards, webcasts, webinars and podcasts featuring music, audio books in the field of changing the status quo through protests, demonstrations, challenging laws and practices, assembly, and/or engaging the media and public discourse, and news broadcasts; Downloadable multimedia file containing artwork, text, audio, video, games, and Internet Web links relating to changing the status quo through protests, demonstrations, challenging laws and practices, assembly, and/or engaging the media and public discourse; Downloadable musical sound recordings; Downloadable ring tones, graphics and music via a global computer network and wireless devices; Downloadable video recordings featuring changing the status quo through protests, demonstrations, challenging laws and practices, assembly, and/or engaging the media and public discourse; Electronic game software; Electronic publications, namely, e-zines featuring content on changing the status quo through protests, demonstrations, challenging laws and practices, assembly, and/or engaging the media and public discourse recorded on computer media; Interactive video game programs; Interactive video games of virtual reality comprised of computer hardware for use with an external monitor and software
  • OCCUPY – A series of books and written articles in the field of changing the status quo through protests, demonstrations, challenging laws and practices, assembly, and/or engaging the media and public discourse; A series of books, written articles, handouts and worksheets in the field of changing the status quo through protests, demonstrations, challenging laws and practices, assembly, and/or engaging the media and public discourse; Booklets in the field of changing the status quo through protests, demonstrations, challenging laws and practices, assembly, and/or engaging the media and public discourse; Books in the field of changing the status quo through protests, demonstrations, challenging laws and practices, assembly, and/or engaging the media and public discourse
  • I”M OCCUPIED – Wearable garments and clothing, namely, shirts
  • OCCUPY WALL STREET – Periodicals and newsletters; bags, including but not limited to backpacks, gym bags, tote bags, luggage and overnight bags; clothing, namely t-shirts, sweatshirts, headwear, and jackets for men, women and children; Entertainment services, namely, providing a web site featuring photographic, audio, video and prose presentations featuring educational and entertaining materials relating to Occupy Wall Street and the Occupy Movement Generally
  •  Every where I go I occupy – Shirts; Short-sleeved or long-sleeved t-shirts; T-shirts
  • OCCUPY WALL ST.  – STICKERS+BUMPER STICKERS; BAGS, INCLUDING HOBO BAGS, TOTE BAGS, GYM BAGS, SPORT BAGS, OVERNIGHT BAGS, BEACH BAGS, BACK PACKS, CARRY ONS, UMBRELLAS; CLOTHING; SHIRTS, SWEAT SHIRTS, HEADWEAR, FOOTWEAR
  • 99%er – Vehicle side view mirror cover
  • TEAR DOWN THIS WALL(STREET) – Vehicle side view mirror cover
  • I AM THE 99% – Stickers; bumper stickers; Bags, including, hobo bags, sports bags, overnight bags, tote bags, gym bags, beach bags, backpacks, carry-on bags, umbrellas; Clothing; headwear; footwear
  • WE ARE THE 99% – Stickers; bumper stickers; Bags, including, hobo bags, sports bags, overnight bags, tote bags, gym bags, beach bags, backpacks, carry-on bags, umbrellas; Clothing; headwear; footwear
  • OCCUPY LAMBEAU CAMP RANDALL WATER STREET KK STATE STREET PACKARD AVENUE RUSH STREET – A-shirts

In addition to possible confusion and ornamental refusals, most of these applications could face another hurdle: most are filed based on a “bona fide intent to use” the mark in commerce in connection with the goods. If challenged, such intent must be fairly well documented.

Slogans or sayings often get a rash of trademarks, and often end up without many or any trademark registrations. See for example: OCTOMOM, YOU’RE FIRED, WINNING, GYM TAN LAUNDRY, and more.

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Trademark Manual of Examining Procedure:

1202.03 Refusal on Basis of Ornamentation

Subject matter that is merely a decorative feature does not identify and distinguish the applicant’s goods and, thus, does not function as a trademark. A decorative feature may include words, designs, slogans, or trade dress. This matter should be refused registration because it is merely ornamentation and, therefore, does not function as a trademark, as required by §§1, 2, and 45 of the Trademark Act, 15 U.S.C. §§1051, 1052, and 1127. … The examining attorney should consider the following factors to determine whether ornamental matter can be registered: (1) the commercial impression of the proposed mark; (2)the relevant practices of the trade; (3)secondary source, if applicable; and (4)evidence of distinctiveness. These factors are discussed in the following sections.

1202.03(f)(i) Slogans or Words Used on the Goods

Slogans or phrases used on items such as t-shirts and sweatshirts, jewelry, and ceramic plates have been refused registration as ornamentation that purchasers will perceive as conveying a message rather than indicating the source of the goods. See In re Pro-Line Corp., 28 USPQ2d 1141 (TTAB 1993) (BLACKER THE COLLEGE SWEETER THE KNOWLEDGE primarily ornamental slogan that is not likely to be perceived as source indicator); In re Dimitri’s Inc., 9 USPQ2d 1666 (TTAB 1988) (SUMO, as used in connection with stylized representations of sumo wrestlers on applicant’s T-shirts and baseball-style caps, serves merely as an ornamental feature of applicant’s goods); In re Original Red Plate Co., 223 USPQ 836 (TTAB 1984) (YOU ARE SPECIAL TODAY for ceramic plates found to be without any source-indicating significance); In re Astro-Gods Inc., 223 USPQ 621, 624 (TTAB 1984) (“[T]he designation ‘ASTRO GODS’ and design is not likely to be perceived as anything other than part of the thematic whole of the ornamentation of applicant’s shirts.”); Damn I’m Good Inc. v. Sakowitz, Inc., 514 F. Supp. 1357, 212 USPQ 684 (S.D.N.Y. 1981) (DAMN I’M GOOD, inscribed in large letters on bracelets and used on hang tags affixed to the goods, found to be without any source-indicating significance).

See also TMEP §1202.04 regarding informational matter.

Related Articles on the Web:

http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=85440738

3 Responses
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