Sunday, April 19, 2009

Octomom's Trademark Filing

I posted a draft of this earlier. My apologies.

I find this filing interesting for two reasons. First, as, noted below, Ms. Sulemen, chose a method which might leave her without any protection - that would seem not to be good for business.

Second, I have never before seen a situation where the mere filing of a trademark was itself the apparent goal of a marketing campaign rather being meant to protect a business interest when marketing a product or service.

JD Supra: Legal Documents - 77711827 | Other
I do not think Ms. Sulemen has yet used the term OCTOMOM as a trademark to identify the products/services listed in her application. It is interesting that the application contains a consent stating "The name(s), portrait(s), and/or signature(s) shown in the mark identifies Nadya Suleman, whose consent(s) to register is made of record." By including that consent, has Ms. Suleman just made her trademark battle more difficult? Why? Because she may have just filed information in which the trademark examiner could argue her use is somehow a surname, generic or descriptive????

Because the applications filed by Ms. Suleman and the company in Austin are intent to use, the priorty of filing goes to the first to file, which is not Ms. Suleman. This will be interesting to follow.
For anyone else thinking like Sushaf, I suggest reading up on the Lexis-Lexus case. The Wikiepdia has this to say about the case:
When Toyota launched the Lexus line of luxury vehicles in 1987, Mead Data Central sued for trademark infringement on the theory that consumers of upscale products such as lawyers would confuse Lexus with Lexis. A market research survey was undertaken at the time, asking consumers to identify "Lexis" (it was only spoken); the survey showed that a minuscule quantity of people thought of the computerized legal search system, a similarly minuscule number thought of Toyota's luxury car division, and an overwhelming plurality thought of a soap opera character. Mead lost on appeal in 1989 when the Court of Appeals for the 2nd Circuit held that there was little chance of consumer confusion. Today, the two companies have an amiable business relationship, and in 2002 implemented a joint promotion called "Win A Lexus On Lexis!"
(See here for more background).

No, this is catnip for trademark litigators.