No man is entitled to the blessings of freedom unless he be vigilant in its preservation.Douglas MacArthur
Insiders say questionable trademarks are responsible for millions of dollars lost/stolen from small businesses each year. Every business owner owes it to themselves to learn how to defend themselves from questionable trademarks and trademark trolls. Yet, learning is not enough. (For more on this topic, see “Why can’t you play fair?”)
Knowing is not enough. We must apply. Willing is not enough. We must do.Bruce Lee
At this point, you may be wondering, “Why are so many questionable trademarks getting registered?” Good question. Here’s the six-word answer: Ignorance and apathy (yours and mine).
USPTO is counting on you!
The US trademark registration process includes an option for anyone, anywhere to file a Letter of Protest against applications that should not be granted. Why? Because USPTO depends on competitors (“stakeholders”) to share vital market information with them so they can issue quality registrations.
For most of the terms we protest in the novelty apparel/print-on-demand industry, the legal basis of the Letter of Protest is “failure to function as a source indicator.” The main legal test for this is, “What is the consumer’s perception? What’s their first impression of this phrase? Brand or popular saying? Or, when it comes to jewelry, maybe it’s simply an item description?”
What you MUST get from this post
Those of us in the print on demand industry will have a much different first impression than the average USPTO attorney.
The folks at USPTO are not marketing experts. They are legal experts. IP law is notoriously complex, and the question of whether a term should be available for registration depends on many factors. It’s up to you and me to supply USPTO with relevant information — information we can easily provide!
USPTO expects you to let them know if a registration will negatively impact your business. That’s why the Letter of Protest system exists. That’s why it’s free.
So, the reason so many frivolous registrations have been issued is that we didn’t know what we didn’t know:
- We didn’t know we were supposed to be watching out for the black-hat tactics of trademark trolls. (Ugh!)
- We didn’t know we weren’t supposed to make the mess bigger by trying to beat them to the punch with our own frivolous applications. (Oops!)
- And after learning how the system is supposed to work, most will be too apathetic to get involved.
(Cue the music: Dum-dum-dum, dum-dah-dum-dah-dum-dah-DUMB!)
Small business ownership comes with responsibilities that have nothing to do with selling your awesome stuff. But most newbies in the Print on Demand space are ignorant of those responsibilities, or unwilling to take them on.
We’re like that toddler in the messy diaper. We think someone else should clean up the mess.
It’s time to put on the big boy pants.