Posted: December 2nd, 2011
By Chris Hewitt *
One simple, three word phrase has captivated, or has at least been imprinted upon, the minds and hearts of many Americans. It has become the headline of the morning paper, the topic of water cooler chatter, and the subject of the nightly news. It has come to signify a political movement and to describe the distribution of wealth in America. The phrase: “Occupy Wall Street.” Occupy Wall Street is a “leaderless resistance movement” that began on September 17, 2011, with a protest in New York’s financial district in Lower Manhattan. The protestors profess to represent the 99% (the “have nots”) that are standing up against the greed and corruption of the 1% (the “haves”). What began as a localized movement has spread to other cities throughout the United States and even across the Atlantic to Europe.
Despite the purpose of the movement, entrepreneurs are attempting to cash in on the movement in true capitalistic fashion. Shirts appeared just days following the initial protest and now both camp sites and the Internet are riddled with vendors peddling coffee mugs, shirts, and various other products bearing phrases related to the movement. Even millionaire rapper and entrepreneur, Jay-Z, is creating a line of Occupy Wall Street themed apparel that will bear the phrase “Occupy All Street.” With such business potential, it is not surprising that the United States Patent and Trademark Office (USPTO) has been bombarded with a flurry of trademark applications for phrases dealing with the movement, including “Occupy” and “We Are The 99 Percent.” But what about the original phrase, the one that represents the movement in its entirety, “Occupy Wall Street?”
There are currently two trademark applications pending for “Occupy Wall Street” at the USPTO. Both applications were filed on October 24, 2011. The first application was submitted by the organizers of the protest, indicating that they would use the phrase on merchandise, in periodicals and newspapers, and on their website dedicated to their movement. Just three hours later, Fer-Eng Investments, LLC, applied for an identical trademark but indicated it would only use the phrase on merchandise and not in periodicals or newsletters. Both of these applications, however, were preceded by an application on October 18, 2011. That application, submitted by a Long Island couple, sought to trademark “Occupy Wall St.” for use on merchandise. The Long Island couple has since withdrawn its application so only the latter two are still pending.
Why does Occupy Wall Street want a trademark when it is supposedly fighting corporate greed? An attorney for the group stated that the filing was intended to prevent profiteering and commercial use of the phrase. The attorney further stated that the trademark could be used for noncommercial purposes. Vince Ferraro, the individual behind the second application, has business purposes in mind should he receive the trademark. Despite his comments that he sees a business opportunity in the phrase, he has refused to give any indication of what use he intends for “Occupy Wall Street.”
It is likely that Occupy Wall Street will receive the trademark over Ferraro. When the USPTO receives two applications for a similar trademark, priority is given to the application that it received first. Also taken into account, however, is whether the phrase was widely used prior to the filing of the first application. Several attorneys have predicted that Occupy Wall Street will likely win because not only did it file first, but it has been using the phrase for months. Ron Coleman, a trademark attorney and blogger, has raised the question of how a leaderless group will manage a trademark. Specifically, who will “speak on behalf of the trademark?”
Though it appears likely that Occupy Wall Street will receive the trademark, that will not be the end of this trademark controversy. With designers and vendors marketing and selling products with the “Occupy Wall Street” phrase, there will probably be several lawsuits surrounding the improper use of the trademark following the USPTO’s decision. So if Occupy Wall Street is victorious, who will speak on behalf of the group? How far will the group take legal action? What effect will such a capitalistic action have on this greed-averse group?
* Chris Hewitt is a second-year law student at Wake Forest University School of Law and a member of the Journal of Business and Intellectual Property Law. He holds a Bachelor of Business Administration in Trust and Wealth Management from Campbell University. Upon graduation in 2013, Mr. Hewitt plans to practice business and estate planning law.