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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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