“Occupy Wall Street” For Sale…By the Occupiers? - Fordham Intellectual Property, Media & Entertainment Law Journal
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“Occupy Wall Street” For Sale…By the Occupiers?

“Occupy Wall Street” For Sale…By the Occupiers?

Nowadays, the “Occupy Wall Street” movement is more than just a political protest against Wall Street bankers and big-wig CEOs; it’s becoming a brand-name. And brand names need protection. Enter: the trademark.

In recent weeks, the U.S. Patent and Trademark Office has been flooded with applications from “enterprising merchandisers, lawyers and others seeking to win exclusive commercial rights to such phrases as ‘We are the 99 percent,’ ‘Occupy’ and ‘Occupy DC 2012.’” According to The Washington Post, an increasing number of entrepreneurs are attempting to profit from the Occupy Wall Street demonstrations. T-shirts, coffee mugs and other merchandise touting “Occupy” slogans are now being sold online and at camp sites across the country.  Ray Agrinzone, a clothing designer, launched theoccupystore.com earlier this month. The site offers T-shirts, hats, buttons, and even custom-made clothing, where buyers can choose the city that is printed on their “Occupy” t-shirt or hoodie.  Even celebrities are using Occupy Wall Street as a for-profit launch-pad—according to Business Insider, millionaire rapper Jay-Z is launching a line of Occupy Wall Street-themed t-shirts featuring the phrase “Occupy All Streets”… and people are not excited about it.

But true to their protesting nature, the Occupy group is fighting back. Or rather, they are trademarking back. Organizers of the Occupy Wall Street protest in Manhattan’s Zuccotti Park responded to several other applications filed with the U.S. Patent and Trademark Office by filing their own application to trademark the “Occupy Wall Street” slogan. “The filing was primarily a defensive move to make sure that no persons not affiliated with Occupy Wall Street were attempting to use the Occupy Wall Street name for improper purposes,” said Samuel Cohen, one of the protestors’ attorneys. Another Occupier attorney , Wylie Stecklow, told The Washington Post that filing was done to “prevent profiteering from…a protest of corporate greed” and to “ensure that this isn’t co-opted for commercial purposes.”

Now hold on a second. Isn’t the purpose of registering a trademark to use it for commercial purposes? According to the U.S. Patent and Trademark Office, a trademark application must specify a “basis” for filing. Most U.S. applicants base their application on “either their current use of the mark in commerce or their [bona fide] intent to use the mark in commerce in the future.” The U.S. Patent and Trademark Office cites having a business plan, creating sample products, or performing other initial business activities as examples of a bona fide intent to use the mark. Which begs the question: is this trademark application by New York City’s Occupiers strictly a preventative measure, designed to ensure that their message is not corrupted through “improper means,” or do the Occupiers have a commercial agenda of their own?

According to The Republic website, the Occupiers’ application, filed by two leaders of the Occupy movement, requests use of the phrase in various forms of merchandise, including backpacks, luggage, clothing and headwear.  CNNMoney states that the application also requests to use the “Occupy Wall Street” phrase on a website featuring “photographic, audio, video and prose presentations” about the Occupy movement.

So what gives? Did Cohen and Stecklow even read the content of their clients’ trademark application before making their anti-commercialism statements to the media? Are they also unaware that the Occupy protestors have already been screen-printing t-shirts and other items in Zuccotti Park? Or perhaps when Mr. Stecklow said that they were “ensur[ing] that this isn’t co-opted for commercial purposes,” what he really meant to say was that they were ensuring that the Occupy movement wasn’t co-opted for someone else’s commercial purposes. “[There’s] [n]othing like infusing a little capitalism into an anti-capitalism movement,” quips a commenter on CNNMoney.

One lawyer calls the group’s trademark application “ironic.” “While the trademark battles for OCCUPY WALL STREET and the movement’s various slogans in themselves are ironic,” he writes, “the applicant, Occupy Wall Street AKA Friends of Liberty Park GA, claiming ‘use in commerce’ (i.e. they have already used the goods and services in the ordinary course trade) for the above goods and services seems to add to the irony, given that the movement itself is seemingly anti-commercial in nature….”

In an online piece entitled Hypocrisy alert! Anti-capitalist Occupy Wall Street applies for trademark to make money off merchandise, the seemingly heated author accuses the “anti-capitalist, anarchist[ ] ‘Occupy Wall Street’ collection of misfits” of “try[ing] [to] profit off all of the violence.” The article sardonically posits that Occupy Wall Street will soon “form[ ] a corporation to fight corporate greed[.]” An article on Mogulite.com also accuses Occupy Wall Street of “trying to capitalize on the fact that the movement has become a trademark-worthy household name.” “At the end of the day,” the author writes, “there’s a little capitalism in everything. It’s just a bit ironic that we see it in a movement against corporate America.”

Bloggers have weighed in on this trademark battle too. “Occupiers are ranting and protesting against ‘greedy capitalism’ as the movement capitalizes on capitalism,” writes one blogger. Another blogger shares similar views: “In what is probably the most humorous thing to come out of the ‘Occupy Wall Street’ movement is this blurb of how the organizers of OWS are trademarking the name in preparation for selling clothing, bags, and other ‘capitalist’ ventures.”

Cohen has countered such critics by claiming that the decision “was not about making money.” He says, “[n]early all nonprofit organizations trademark their names…and the purpose is to avoid consumer confusion.”  While a trademark would give the Occupiers the right to use the name on consumer merchandise and in other commercial venues, they claim that any revenues generated will not be used to “lin[e] anyone’s pockets,” but rather to help the activists achieve their goals.

Ron Coleman, a trademark lawyer and author of a popular trademark blog, predicts that the New York protesters will ultimately win the trademark battle. But at what expense?

Jordana Greenblum