Three groups recently filed trademark applications for the term "Occupy Wall Street" with the United States Patent and Trademark Office ("USPTO"). Primarily, the three entities/parties seek to trademark the name for use on clothing items--although they are seeking to use the name on other types of merchandise. Two leaders of the movement who handle the finances for the movement (Occupy Wall Street aka Friends of Liberty Park GA) ("OWS"), an Arizona-based company, Fer-Eng Investments, LLC ("Fer-Eng") and a New York individual (Diane Maresca) ("Maresca") all filed applications for trademark registration. According to some accounts, Fer-Eng appears to be a shell corporation for a family trust. Supposedly, the trustees of the family trust belong to the 1% that Occupy Wall Street movement targets.
Reading between the lines, it seems as if Fer-Eng Investments, LLC believe they found an opportunity to obtain and exploit an asset like the OCCUPY WALL STREET trademark. It is unclear whether Maresca is in anyway affiliated with OWS or the Occupy Wall Street movement. However, both the Fer-Eng and Maresca's applications are intent-to-use applications--meaning that neither of these applicants are actually using the trademark on its goods in interstate commerce. Our trademark law gives precedence to those who are first to use the mark in interstate commerce. Of course, trademark law hedges a bit by allowing a person to file a trademark application based on an intent to use the trademark in interstate commerce and using the filing date to establish priority over others who use or intend to use the mark at a later date. An interesting plot twist is that the Maresca filed her intent-to-use application on October 18, 2011, while Fer-Eng and OWS filed their applications on October 24, 2011 with OWS' application being submitted about 50 minutes before Fer-Eng's. OWS's application claims that it began using the mark in interstate commerce for at least some of its listed goods around September 17, 2001 and first used the mark anywhere on July 1, 2011. It appears as if OWS will ultimately win this battle, but it will be an interesting battle to monitor.
With intellectual property becoming more valuable, it is no wonder that there will be several entities seeking to capitalize on such events. See my earlier blog regarding the company essentially hijacking the San Francisco's Giants' trademark. This is just another reminder that you should be more proactive and vigilant in protecting your intellectual property rights. It is always a good idea to conduct an intellectual property audit on a regular basis to ensure that you are protecting all of your or your company's assets.
