It's not often that I write about a topic related to the field in which I work, which is trademark law. So, I couldn't help but be amused when I read this story on Crooks and Liars regarding Half-Term Sarah's difficulties in registering her name SARAH PALIN as a service mark with the United States Patent and Trademark Office (hereinafter "USPTO").
Palin's application was filed with the USPTO on November 5, 2010 and was assigned serial number 85170226. If you're curious enough, you can look up the application yourself on the USPTO'S TESS database. Just click on the link and type in SARAH PALIN in the search term field and click on Submit Query. Then click on the first hit, SARAH PALIN (the search will turn up a second application for the mark SARAH PALIN'S GOING ROGUE ROUGE which was filed by another person, but more on that later). You can then view all of the documents available to the public for the application by clicking on the blue button labeled TDR.
The application was examined rather quickly, in less than a month, probably because the filing attorney filed using the TEAS Plus form. The Office Action (which is what a USPTO Examining Attorney issues to a trademark applicant informing the applicant of the Examining Attorney's objections to the application) sets forth two objections to the application.
The first objection is just a mere technicality, but it indicates that the attorney who filed the application does not know a heck of a lot about trademarks. You see, when a trademark application is filed that contains the name of a living individual, you need to provide the signed consent of that person if that person is not the one who is signing the application. This objection can be easily overcome by having Sarah Palin sign a simple form that states that she consents to the application. In fact, the TDR record indicates that the law firm representing Palin has already been in communication with the Examining Attorney regarding the requirements for overcoming this objection.
The second objection is more serious. But first some background information. Most domestic trademark applicants will commonly file the application based on one of two filing bases. A Section 1(a) application is an application wherein the applicant is using the mark in commerce in the United States a the time of the filing of the application. The applicant has to submit a specimen evidencing use of the mark and provide the date when the mark was first used. The second common filing basis is the Section 1(b) application, in which the mark is not in use at the time of the filing of the application, but the applicant intends to make use of the mark at a later date. An application filed under 1(b) cannot pass on to registration until a Statement of Use is filed with the specimen and first use date.
Furthermore, when an applicant submits a trademark application with the USPTO, the applicant is declaring, under penalty of perjury, that he or she believes that all of the information provided in the application is, to the best of the applicant's knowledge, true. Palin's application alleges that she used her name in connection with the services "Information about political elections; Providing a website featuring information about political issues" in Class 35 at least as early as January 1, 1996. However the specimens provided in support of her use claim is a page from the Fox News website from January 11, 2010 announcing that Palin was joining Fox as a political contributor (which of course as we all know is the real reason why she resigned her position as governor of Alaska. She gets paid much more money to spout bullshit about things she doesn't really know compared to governing one of the least populated states in the country) and postings from her Facbook page.
The problem for Palin's application is that being mentioned by Fox News on its web site is not evidence that she herself is providing information about elections and having a Facebook page does not constitute providing a website featuring information about political issues. Again, this strongly supports my belief that the attorney retained by Palin to file her application is not familiar with trademark law. Even more egregious is the first use date, January 1, 1996. While just about anyone who had a computer in 1996 had online access, it was not common for most people to have their own websites. For example, the well-known wingnut personality Michelle Malkin did not register her domain name until February 9, 1999, according to a Whois search of michellemalkin.com. I seriously doubt that Sarah Palin, who was unknown outside of Alaska at the time, had a website where she provided information about political issues as a private citizen. In early 1996, Palin was serving on the Wasilla City Council. I suppose it is possible the Wasilla City Council had its own website in 1996, though any information or remarks provided by Palin on the site would have been in her capacity as an elected official.
While Sarah Palin today has a website, sarah-palin.com, a Whois search indicates that this domain was created on August 29, 2008. There is also a domain name sarahpalin.com that was created on April 26, 2004, though the webpage is blank. A Whois search of foxnews.com indicates that the Fox News domain was created on June 21, 1995. I'm hazarding a guess that Palin's attorney (or Palin herself) believed that since Fox News was around since 1996, Palin could somehow piggyback on that. Or alternatively, as I wrote in the paragraph above, maybe she thought that anything she provided on a local government website back when she served on the Wasilla City Council counted as use of SARAH PALIN. Either way, an attorney knowledgeable about trademark law would have done a better job in providing a valid specimen and first use date.
It should not be too hard for Palin to submit a valid specimen, though I wonder if the Examining Attorney will also take her to task for the January 1, 1996 first use date, which I am quite certain is erroneous and possibly dishonest. The deadline for Palin to respond to all of the objections raised by the Examining Attorney is May 29, 2011, so she has a little over three months left to straighten this out. I wonder, by the way, if this story gets picked up by the conservative blogosphere if any of Palin's wingnut fans will call or send the Examining Attorney angry messages to stop picking on poor Sarah by bothering her with such pesky rules.
And to get back to what I alluded to earlier, an Alaskan individual named James Weeks has filed an application to register SARAH PALIN'S GOING ROGUE ROUGE for adhesive labels and printed novelty wine labels. Just like Sarah Palin herself, Weeks has to provide Palin's consent to register Sarah Palin's name as a trademark. However, I doubt that Weeks is going to get his former governor to consent to his application.
One other thing. Bristol Palin also has an application pending to register her name, filed by the same attorney who is handling her mother's application. Just like with her mom's application, Bristol's application has been rejected because Bristol did not sign the application, so she also has to submit her written consent. Also, like her mom, Bristol is facing an objection to the specimen submitted in support of her 1(a) application, which as the Examining Attorney has pointed out, is just a white sheet with her name typed on it.
I suggest that the next time the Palins want to file more trademark applications that they hire an experienced IP attorney.