Trademark System Bias

Welcome to a series about the threat and impact of questionable trademarks.
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Messy Diapers: Why I Fight Frivolous Trademarks

Oh, dear. So many times I and my Merch friends have been misunderstood in the fight against frivolous trademarks. In the Spring of 2020, I discovered two attorney letters online that perfectly illustrate why trademark abuse is so rampant. Y’all really need to understand this issue in a much bigger way.

Item #1: An article entitled, “The Secret PTO” by Katherine McDaniel of Fulwider Patton LLP. Her article makes several erroneous assumptions, the worst of which being who would file a trademark Letter of Protest, and why. She thinks it’s the big brand owners, using the Letter of Protest to manipulate outcomes. Her misunderstanding makes sense, because most attorneys of her caliber are probably not buying many T-shirts.

Item #2: A letter to the Commission for Trademarks by another attorney in support of the proposed $100 fee for filing a Letter of Protest. In it, this attorney presumes protests are filed by “trademark vigilantes” who “bog down the system” with multiple protests against the same application so they can squash the competition. Honestly, that letter was so full of maligning misinformation, I decided to NOT link it, lest that attorney’s reputation be tarnished permanently. Oy vey!

Both of these attorneys fail to understand the purpose and importance of allowing stakeholders to speak up when a competitor tries to create a virtual monopoly.

Who is Morgan Reece?

I’m not a “big brand owner.” Just the opposite. I’m a homeschool mom in the middle of nowhere. My husband works two jobs to support our family. My success on Amazon, Etsy, and in the blogging world has been minimal.

For about a year, I was a member of Trademark Watch Dawgs. USPTO’s staff attorneys helped us develop a reliable system for filing a compelling trademark Letter of Protest, while avoiding duplicate protests. Nobody I ever met through that group could be considered a “trademark vigilante.”

I’m not trying to squash my competition.

In every protest I’ve submitted, I have no skin in the game. No competing products.

So Why Bother?

I’m not an attorney… just a former legal secretary and daughter of a bankruptcy attorney. I can’t help being passionate about fighting frivolous trademarks. I’ve heard the stories of foreclosure and even bankruptcy that result when a bogus trademark is “enforced” by its owner.

I’ve seen the devastation that results when hundreds of business owners lose their products overnight. And, thanks to my dad’s work, the word “bankruptcy” conjures up faces and stories that compel me to do what I can to set things right.

Am I practicing law without a license?

Lest you think that I (and, by extension, the Trademark Watch Dawgs group where I deposited my training materials) haven’t got the necessary “legal training” to avoid “misunderstanding the trademark rules,” I’ll point out three facts (please forgive the personal references):

Fact #1: I invested most of 2018 studying the Letter of Protest system. My study involved hundreds of hours poring over the TMEP, plus over a dozen calls with USPTO Attorney Advisors.

Fact #2: Seven of my post-publication Letters of Protest were accepted. In other words, seven times, I submitted evidence that USPTO’s examining attorney had made a clear error when they approved the mark for registration. (In some cases, I only organized evidence collected by others and prepared the Index. But USPTO only lets one person submit the protest, so I got the credit though someone else did the heavy lifting.) And seven times, the Commissioner of Trademarks said, “Whoa, Morgan, you’re right!” (or took action to that effect).

Fact #3: I’m a former admin of Trademark Watch Dawgs. In 2019 I left that group to pursue my dream of self-publishing a book to encourage moms. Before I left, I turned over all the training materials I had created from documenting my protests and the things I learned. So, no, the Trademark Watch Dawgs doesn’t have an attorney on staff. But their group is constantly updating best practices and working hard to avoid inundating the USPTO with duplicate protests.

In fact, the main reason Trademark Watch Dawgs tracks frivolous trademarks in an Airtable is to LIMIT protests to one per application. USPTO guidelines state that five or more protests against the same application will be thrown out!

How Trademarks are Like Messy Diapers

Ever seen a toddler who actually wants to wear a messy diaper? As Dave Ramsey describes them, “Yeah, I know it’s messy, but it’s mine and it’s warm.”

Too many Merch and Etsy sellers are just like that toddler. 

See, there are twin, growing “messes” in the print-on-demand industry (POD): 

  • trademark trolling or overreach 
  • frivolous (questionable and often ineligible) trademarks

We’ve heard about frivolous trademarks and how they are harming the industry. We know there’s a mess, and it’s getting bigger. But we want to play online doing fun stuff a couple of hours a day and watch all that passive income roll in. If things get messy around us someone else can clean it up.

Time for the Big Girl Pants

Act as if what you do makes a difference. It does.

William James

It’s time for Merch and Etsy sellers to own the mess caused by frivolous trademarks. Building a real business comes with real responsibilities. 

I don’t say that harshly. I had my own “head in the sand” attitude for the first six months or so that I heard about this problem: 

  • I’m too busy. Don’t you know how hard I’m working on my FBA business? 
  • I’ve barely had any Merch sales anyway — I’m a newbie, a nobody. No skin off my nose.
  • This only affects the big-time sellers. 
  • Don’t get me wrong — I’ll do my due diligence! I won’t infringe on someone else’s trademark! But there’s nothing I can do to stop them… or is there?

Finally, in February 2018, I saw Ken Reil “beating this drum” again. Ken’s presentation at a Merch workshop months earlier had helped me. For the first time, I saw this as an issue that affected someone who mattered, if only because they’d helped me. So when Ken announced his discovery of USPTO’s Letter of Protest system, I jumped into research mode.

I started on this journey to help Ken, and I continue it today to “pay it forward” in gratefulness to the many members of the Merch, Amazon, and Etsy communities who have helped me in my entrepreneur journey.

Let’s clean up the mess!