Making its Mark: “Occupy Wall Street” Files Trade Mark Application

On 24 October 2011, organisers from the unincorporated association “Occupy Wall Street” filed an application to trade mark their name with the U.S Patent and Trademark Office (“USPTO”).  The movement is interested in protecting the phrase for merchandise such as bags, clothing, luggage and headwear, in newsletters and periodicals and on a website featuring educational materials related to the Occupy Wall Street movement including photographic, audio, video and prose presentations.

The movement’s attorney, Wylie Stecklow, stated that the application was made to prevent corporations from profiting from the use of the phrase.  Organisers of the movement believe that allowing the name to increase corporate profits would go against the very purpose and objectives of the protest, namely, corporate greed.  According to Stecklow, if the application is successful, the trade mark will be used for non-commercial purposes.

Unfortunately, Occupy Wall Street is not the only entity to file an application for the same trade mark.  An application with the same filing date was made by Arizona-based Fer-Eng Investments LLC who also intends to use the phrase to cover much of the same merchandise including t-shirts, headwear, jackets, backpacks and gym bags.

According to USPTO, priority is usually given to the first application lodged.  Occupy Wall Street’s application was filed at 3.45pm merely 3 hours before Fer-Eng Investments, which applied at 6.41pm on the same afternoon.  The situation became quite messy when a third application was discovered.  

Roughly a month before the filing of either Fer-Eng Investments or Occupy Wall Street’s application, Robert and Diane Maresca applied for the trade mark of “Occupy Wall St” after Robert’s involvement at the protest in Zuccotti Park.  For several days, he made free t-shirts for protesters using a permanent marker.  Following his realisation that “it was not healthy to smell the fumes”, he decided to consult a silk-screener.  He was concerned that they could be sued if someone else obtained the trade mark, so he decided to lodge an application himself.  The Marescas said they are prepared to sell the trade mark, if granted, to the Occupy Wall Street group for $1 after their costs are covered.

Currently, all three applicants await the decision of the USPTO.  The trade mark office has also received a flood of applications for slogans related to the movement, including “We are the 99%”, “I am the 99%” and “Occupy D.C 2012”.  However, irrespective of which applicant is ultimately granted the trade mark, one cannot help but note the irony in seeking monopoly rights in a term associated with a movement which is intended to justify the opposite.  

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