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Can “Occupy Wall St.” Be Trademarked?

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Occupy Wall Street by Tony the Misfit on Flickr

Occupy Wall Street by Tony the Misfit on Flickr

A couple from West Islip, New York has filed a trademark application with the United States Patent and Trademark Office (USPTO) to register the name “Occupy Wall St.”

Robert and Diane Maresca filed an application on October 18 for $975 with the intention of putting the phrase on various novelty items such as bumper stickers and t-shirts. They have not yet sold any such products, but if granted the trademark, would presumably be able to profit from such sales as well as stop others from selling merchandise that could be confused with that of “Occupy Wall St.,” the brand.

“I’m no marketing genius, but when you got something that’s across 50 states, it’s a brand now,” said Robert Maresca, as quoted by CNN.

The couple says they support the grass roots movement protesting against the power held by banks and corporation as well as the financial industry’s role in the recent economic problems felt throughout the world; Robert Maresca is “also really against corporate money distorting elections.” Maresca is a member of Ironworkers Local 361 who can no longer work because of a stroke and work-related injury; he describes himself as independent politically, although “fiscally conservative but socially liberal.” He and his wife have also been quoted as saying that if they didn’t “buy [the trademark] and use it, someone else will.”

Indeed, they say that when doing a preliminary search for conflicting marks, they discovered that there is an existing trademark application for the phrase “We are the 99%,” filed by Brooklyn resident Ian McLaughlin.

But Tyler Combelic, an Occupy Wall Street spokesperson, maintains that “[t]he goal of OWS is not to become a profitable business.” Combelic also said, “Anything that misconstrues it as such, such as trademarking for the sake of profiting, is missing the point of protest.”

So who would get the profits of OWS merchandise?

Robert Maresca maintains that is his “intent to have them [Occupy Wall Street supporters] get the maximum benefit possible after any expenses.” He has even entertained the idea of selling the OWS movement the trademark “if it’s feasible” for just $1 after repaying his initial expenses.

In fact, Maresca says he’s really protecting the trademark from those who would abuse it: “When I checked, it was available for anyone to trademark,” Maresca said. “And if I didn’t file, who’s to say who else might have grabbed it? Everybody had a right to it, and it’s important to keep it away from people who would try to use it for negative,” he said.

But backing up for a second, can the Marescas trademark Occupy Wall Street?

Cynthia Lynch, administrator for trademark policy and procedure for the USPTO, recently talked to Time’s NewsFeed, although not specifically about this application. The conversation went like this:

Q: Do you have to have a connection to something to trademark it?

A: [The applicants] must show a connection to the mark and that they believe they are the owner of that mark and believe they have the exclusive right to use it. You can’t register a mark if you falsely register a connection.

Notice that Lynch states that an applicant must have a connection to the mark, though, and not necessarily to the underlying subject matter of that mark. And this isn’t a case where someone is trying to claim a mark that uses someone else’s name—so the applicant doesn’t need to necessarily get anyone’s permission like he or she would in the case of a name. (You can’t register a trademark that includes someone else’s name without their express, written permission—for obvious reasons.)

So: Do the Marescas have a connection to the mark as soon as he begins selling things bearing it? Strangely, it seems like they may be able to demonstrate that connection—assuming they start selling their OWS wares.

The USPTO will have the final say, but what do you think? Should someone be able to trademark the name of a social movement?

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October 28th, 2011 at 2:01 pm