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Alternative Facts

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We’ve written before about the importance of acting quickly when it comes to registering your trademark. Even if you are entitled to registration, waiting to file can add significant delay and expense. Recent events provide a great example of the importance of timely filing and the strategic value of filing an intent to use (ITU) application as fast as possible.

On January 21, 2017, White House Press Secretary Sean Spicer told the press that their reports on the number of people who attended Trump’s inauguration were wrong. Following up on this later, Trump’s campaign strategist Kellyanne Conway defended Spicer’s claim, making the unfortunate comment that Spicer had provided “alternative facts” to the press’s story. The Internet community pounced on this, turning “alternative facts” into a meme overnight.

The ITU trademark applications were quick to follow.

Everyone Likes Alternative Facts

The first application for “alternative facts” was filed the next day by a woman in Pittsburgh. It was filed without an attorney, and probably for this reason, has what appears to be invalid descriptions of goods and services, but purports to apply to “website, clothing, mugs, and posters” in class 042 (computer and scientific services), and “alternative facts” in class 045 (personal and legal services). Ms. Kelly was the fastest on the draw, but will likely face problems based on her description of goods and services. Should she succeed, however, she will have the earliest priority date and can block the other applications, at least for similar goods and services.

Second place goes to Mr. Bordenave, who filed a use in commerce application on January 23 in class 16 (paper goods and printed matter) for a variety of goods such as bumper stickers, decals, signs, books television shows, and movies. Mr. Bordenave is also proceeding without an attorney. Assuming that he has actually used these items in commerce (it appears he failed to submit a specimen), his main difficulty will be the possibility of an ornamental rejection– that is, a rejection on the basis that using “alternative facts” on a bumper sticker does not identify the source of the bumper sticker, but is instead a slogan.

The third application was filed on January 24 by a Mr. Savloff. It is also in class 16, this time for books, movies, television shows, and the like. Because it was filed after Mr. Bordenave’s application in the same class for similar goods, it will likely receive an initial rejection, but may ultimately register if Mr. Bordenave is not successful and if Mr. Savloff uses the mark in commerce. Mr. Savloff did not use an attorney.

Two applications were filed on January 25. The first, an ITU filed by an unrepresented individual, covers four classes including class 009 (mobile apps), class 025 (clothing), class 028 (board games and card games), and class 041 (entertainment services such as TV shows). This application shows promise. Because it is an ITU, it essentially needs only to correctly identify goods and services and the owner, which it appears to have done. Mr. Roberts will likely have the best rights to this mark for some key classes.

The second January 25 application actually is an ITU for “ALTERNATIVE FACTS GAME,” by a person other than Mr. Roberts, in class 028 for board games. The “GAME” is descriptive and must be disclaimed. The application was filed by Mr. Leal after Mr. Roberts’ application, which also covers games. Because Mr. Roberts was faster, his application will proceed. Mr. Leal’s application will be suspended and, if Mr. Roberts’ application registers, eventually it will be denied. Mr. Leal was not represented.

January 26 saw another ITU application in class 028 for games. This application was by a company and was the first one filed by an attorney. Once again, this applicant faces the problem that Mr. Roberts is first in line. The application will likely be suspended pending the outcomes of the two prior January 25 applications.

January 26 also saw my favorite application, an ITU by Faction Brewing Company in class 032 for beer. The application was filed by attorneys at The Craft Brew Attorney. As a home brewer and trademark attorney, I can only admire this firm’s excellent business model. I expect this mark will be registered and will look for it at my local beer store.

January 26 saw one final ITU application, again in Class 009 for computer programs. This will likely be suspended over Mr. Roberts’ application, again showing the value of speed. This applicant was not represented by an attorney.

The last application filed as of this writing was filed on January 27, only a few days after Ms. Conway’s fateful remarks but perhaps far too late for this popular term. The applicant, an LLC represented by counsel, applied in class 14 (jewelry), class 16 (paper and printed products), class 18 (leather products), and class 25 (clothing). This application is behind several people in classes 16 and 25, and will likely be suspended; however, the applicant may have luck in classes 14 and 18.

Speed Matters

These applications show the importance of acting quickly. In the ITU context, the application simply needs to identify the owner and the goods and services, which can be quickly identified in the PTO’s search interface. The first person to file either gets the rights or, if not, delays everyone else for months or years.

If you have a mark you would like to register but have been putting off, stop waiting! Over 500,000 new applications are filed a year. Every day hundreds of new applications are filed that could block or delay your registration, and could limit your rights. Call your trademark attorney to get the process started, or call us: we’d be happy to help.

Law 4 Small Business, P.C. (L4SB). A little law now can save a lot later. Learn more about our trademark registrations — by properly trained and licensed attorneys — for about the same price as those other Internet companies.

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