Since its first demonstration on September 17, the Occupy Wall Street movement has inspired other “Occupy” protests around the world, complaining mainly of capitalism and the high concentration of wealth in only 1% of the population. However, as irony would have it, people now are trying to make money off the movement protesting against capitalism by filing for a trademark on the phrase “Occupy Wall Street.”

Thus far three separate applications for “Occupy Wall Street” have reached the United States Patent and Trademark Office (USPTO). First, a couple from Long Island filed on October 18 for “Occupy Wall St.” but they withdrew the application on November 4.  On October 24 two more applications were filed: the first by leaders of the movement who handle the finances, Victoria Sobel and Pete Dutro, and the second only hours later by Vince Ferraro of an Arizona company, Fer-Eng Investments LLC. Sobel and Dutro’s application not only lists a wider range of goods and services for the mark, ranging from clothing and gym bags to newsletters and websites, but the application also carefully designates both a “First Use” date of July 1, 2011 and a “First Use in Commerce” date of September 17, 2011, the first day of the demonstration in New York.

But what are the odds this trademark application will succeed and which application will prevail? If there are competing applications, the USPTO does look at who filed the application first, but more important is who used the mark first in commerce. Also, a person or entity filing for the trademark must have a connection to the goods and services that display the trademark. While the movement leaders easily have a better argument for why they should receive the trademark, they are unlikely to actually receive the registration until almost a year from now. The USPTO usually doesn’t even get moving on an application until three months after its filing date, and the average total review time for the application is eleven months. Even after the USPTO reviews the application, it often publishes it for opposition in the Official Gazette for Trademarks, which allows the public to oppose the trademark registration and may even lead to a panel of judges reviewing the application and oppositions. Given the time the USPTO takes and the likely opposition to registering such a popular and widely-used tradmark, this trademark is unlikely to be officially registered anytime soon.

Until a person or entity secures the exclusive right to the mark, anyone has the right to use the phrase “Occupy Wall Street” in commerce and, not surprisingly, many people have already done so. A simple eBay search for the phrase brings up almost 5,000 results, mainly for clothing. A man named Ray Agrizone even launched a website, theoccupystore.com, offering t-shirts, hoodies, hates, and stickers for sale. Although he donates 10% of all sales to the Occupy Wall Street movement, clearly his motivation is profit, which goes directly against the heart of what the movement is fighting against. Plus, isn’t it ironic that the movement leaders are applying for this trademark at all?  According to their application, they plan to use the trademark to sell goods like clothing and gym bags for profit, also known as engaging in capitalism, even though that is exactly what they are protesting against.  Although their attorney who filed the application says it is purely a “defensive move” so others will not wrongly use the phrase, I think the irony speaks for itself.

– Megan LaDriere

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3 Responses to Occupy the USPTO: Attempts to Trademark “Occupy Wall Street”

  1. Joanna Collins says:

    I really enjoy the irony of this, especially since the vendors are now competing against each other at the PTO. Perhaps this is one more indication that the movement lacks the uniformity that is necessary to effect social change?

    It seems like this might be a particularly difficult trademark case because there are so many off-shoots of the initial “Occupy Wall Street” protest. For example, suppose the PTO does grant a trademark in the “Occupy” brand – would the winning party own the rights to any and all use of the word “Occupy” followed by a geographical destination? Or just “Occupy Wall Street”?

    Additionally, it seems as though “occupy” is more of an idea than a brand to be traded on in commerce. At its essence, it is the concept that the 99% should “occupy” the public space that is rightfully theirs. Because an idea or concept cannot be owned or protected by intellectual property law, I am interested to see what comes of this. These parties might have a stronger argument if they were using a combination of word and logo in commerce, rather than attempting to register the mere words “Occupy” or “Occupy Wall Street.”

  2. Kevin Lumpkin says:

    Oh man, what if they get the trademark and start using it to make a ton of money, and they become the 1%? Will we get an Occupy Occupy Wall Street movement? So meta.

  3. Talor Bearman says:

    I think it is interesting that you point out it may take almost a year for the trademark to be issued. Since the key to any trademark is the “use in commerce” (http://www.uspto.gov/trademarks/basics/index.jsp) of that mark, I wonder if the mark will be in use a year from now?

    Setting aside the hypocritical issues with using this particular mark in a commercial setting, a second irony can be seen in the attempt to trademark “Occupy Wall Street” because it almost concedes that the movement will not be successful. The very nature of any movement like “Occupy Wall Street” is to bring about change, so if they are successful in their objectives the movement will cease to exist. The only way in which the owners of the “Occupy Wall Street” mark can continue to find a market for its merchandise (and therefore continue to use the mark in commerce) is if there is a continued need for this movement years into the future.