Los Angeles – As the Occupy Wall Street Movement receives increasing press coverage and national visibility, merchants have increasingly attempted to market related merchandise to protesters and supporters. As of November 10, 2011, several companies have filed for trademark protection for different trademarks and slogans related to the movement. The USPTO has recently received trademark applications from various merchants seeking to register trademarks such as “Occupy,” “Occupy DC 2012,” “We are the 99 percent,” and “Occupy Wall St.”
While businesses unrelated to the protests have filed applications for related trademarks, it was a coalition of Occupy Wall Street protestors who filed the trademark application with the USPTO for the phrase “Occupy Wall Street.” Wylie Stecklow, attorney for the protestors, stated that the trademark application was filed to prevent corporations from profiting from use of the Occupy Wall Street phrase. Stecklow claims that the movement is a protest of corporate greed and that allowing the movement’s name to increase corporate profits would be unfortunate. According to Stecklow, if registered, the trademark may still be used for non-commercial purposes.
Stecklow and the Occupy Wall Street protestors, however, were not the first to file a trademark application for “Occupy Wall St.” Instead, Robert and Diane Maresca filed an application with the USPTO for the trademark “Occupy Wall St.” almost a month ago. The Marescas claimed that they planned to use the trademark in conjunction with several products.
In order to receive a registered trademark, a trademark must be used in commerce in connection with the sale of goods or services. If the trademark is not in use at the time of the application, the applicant may file an intent to use application to reserve the trademark. An intent to use application requires a bona fide intent to use the trademark in commerce. However, if the trademark is already in use, the applicant intending to reserve the trademark may be unable to establish priority.
In this case the battle for the phrase “Occupy Wall Street” and related phrases will depend on the applicant’s ability to show priority, distinctiveness, and use in commerce. The Marescas may be unable to show priority over the trademark, which was in use by others before their application was filed. While they were the first to file, if another party can show use in commerce predating the Marescas intent to use application, the Marescas may not receive a trademark registration. On the other hand, many predict the protesters’ application will be successful, granting them trademark rights to the phrase, “Occupy Wall Street.”