The United States Patent & Trademark Office (USPTO), in Washington, D.C. has temporarily foiled Sarah Palin’s plans to receive trademark protection for her name. (See U.S. Trademark Application No. 85170226 pdf file). The reason for the agency’s disposition: She (or her attorney) forgot to sign the application. Seriously? That sounds like a WTF moment to me.
Registration is refused because the applied-for mark, SARAH PALIN, consists of a name identifying a particular living individual whose consent to register the mark is not of record. Trademark Act Section 2(c), 15 U.S.C. §1052(c).
According to Reuters news, Thomas Van Flein—the attorney who filed the trademark applications on behalf of Sarah and Bristol Palin—has been relieved of his services with the Alaska law firm of Clapp, Peterson, Tiemessen, Thorsness, Johnson, LLC. At the time of this posting, Van Flein’s bio was still on the firm’s website, but could only be accessed using the URL http://www.akcplaw.com/thomasvanflein.asp. Reuters reported that attorney John Tiemessen has assumed control of the matter. Neither Tiemessen nor Van Flein are noted as having any experience in trademark law, though I’m not sure that trademark experience would have prevented the obvious error in the Palins’ USPTO applications.
Actually, there was another reason that the USPTO denied the application. You can’t get trademark protection arbitrarily, because you have a good idea (regardless of whether it’s original), or because you figured out how to send in the application and filing fee. Part of the reason for this is that the policy reason for trademark protection isn’t so much about the owner of the mark, it’s to protect consumers from the likelihood of confusion with regard to the source or purveyor of goods and services. This is a whole topic in and of itself, but what it means is that trademark protection is only afforded to those who demonstrate bona fide use of the mark in the ordinary course of trade. Quite simply, the Palins failed to show any bona fide use in their trademark application:
In this case, the specimen submitted for the “Information about political elections” is a news story on the Fox® Network about Ms. Palin. The specimens submitted for the “Providing a website featuring information about political issues” are postings on Facebook®. The specimen does not show use of the mark as “providing a website featuring…” Rather[,] the proposed mark merely appears as a posting name…
None of these specimens show use of the mark SARAH PALIN in relation to the services specified of “Information about political elections” and “Providing a website featuring information about political issues.”
The Palins have 6 months to amend their application, and resubmit it to the USPTO together with another filing fee. If they don’t, the trademark office will deem the mark(s) abandoned. No word on whether the Palins intend to sue their former attorney for malpractice—however, if they do decide to sue, their current attorney specializes in professional malpractice (conflict of interest notwithstanding). It is also unknown whether Levi Johnston, Bristol Palin’s somewhat estranged former fiancé, is also seeking any kind of trademark protection—for his name, or his “junk.”