I try not to blog about the trademark stories that are all over the place. There are a couple of reasons for this. One is that I am a snob. I always knew that if “everyone was going” to see some movie, I was not interested in going unless some other reason could balance out the inherent flaw of popularity. This is not a particularly meritorious quality of mine, but this is just between us.
Even less meritorious, when you have one of these popular trademark stories — like the Palin trademark situation — I figure if everyone is all over a story, well, it’s covered, right? Let me find the story everyone else isn’t writing about. Plus, why risk blowing it? Lots of people know this stuff better than I do. (UPDATE: Here too — excellent comprehensive treatment.)
And then I take a look at what everybody’s saying because people are poking me about it and I realize maybe they’re missing something, perhaps. That happened with the Politico trademark thing.
So here everyone’s talking about Sarah Palin trying to “trademark her name.” Of course regular readers already know that “trademark” is not a verb and that what Sarah Palin is trying to do is register her name as a trademark. That’s not even low-hanging fruit any more around here.
My main take on this, looking at the application and the reporting, is that the law firm that filed the application should be very embarrassed, and certainly is. As everyone knows by now, the application — here’s a PDF of the Office Action — was not properly authorized (“signed”) by the applicant, Governor Palin.
That is a tip-off that a lawyer who doesn’t really do trademark work was doing “trademark” “work.”
And indeed, running down the bio of the attorney of record, I see an accomplished generalist / litigator who is not a trademark lawyer — but who still exercised poor enough judgment not only to handle this himself with little more insight into the process than a well-focused layman, but with the full knowledge that he would subject himself to this level of scrutiny if anything went wrong. Or even if it went right. That same office has not continued to cover itself with glory as of this “Notation to File” only yesterday.
Trademark law does not get respect from the judges who “wing it” regarding other people’s businesses, from journalists and even law bloggers who by their misuse of the word “trademark” demonstrate a fundamental misunderstanding of American trademark law (by which trademarks are earned by use, not a process called “trademarking”), from outfits such as Legal Zoom that have non-lawyers file trademark applications for fees or from the lawyers who think of it as such a meatball area of practice that “anyone can do it.”
It’s all fun until someone puts out an eye, you know?