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OSAMARKS (The Folly of Folks Who Seek to Register OSAMA Marks)
Since the announcement of the Navy Seals‘ Seal Team 6 killing of Osama Bin Laden earlier this week, the news has been full of Osama. But what about the PTO? PTO filings seem to follow news trends, so I thought it would be fun to see who has tried to register OSAMA and for what since the announcement of his death. Unfortunately, the PTO’s TESS database is about a week behind, so there is but one new OSAMA application in TESS:
Milk Money Clothing, Inc. applied to regsiter OBAMA GOT OSAMA for apparel at 11:35pm on May 1, 2011. Somewhat suprisingly, the application was filed as In Use with a first use date of May 1, 2011. Since the application was filed a mere 5 minutes after the “official” announcement of Bin Laden’s death, one must wonder how bona fide interstate sales were made so quickly.
There are 2 previously registered OSAMA marks and 14 DEAD applications to register OSAMA:
The two canceled OSAMA registrations seem to have been non-politically motivated. The first, OSAMA SR. was registered to Mighty Enterprises, Inc. for “high speed precision lathes” in September, 1984. The translation statement in the registration states, “the word OSAMA in Japanese means King.” (Who knew?) This registration was canceled in 1991. The other OSAMA registration issued on April 4, 1995 to an Italian company, Osama Spa, for “oil paints and temperas for artists,” and “office and school supplies . . .” That registration was canceled on July 31, 2002.
Now for the juicy stuff! Fourteen of our fellow citizens thought it would be a good idea to apply to register marks containing the name word OSAMA in reference to the World’s Biggest Bad Guy. Before I click on a single TESS file I wonder if any of the OSAMA applications were filed by attorneys. I mean, you think they’d know better, right? The answer is five! Well, two applications were filed by the same attorney, so let’s call it four, but still! Four attorneys thought they’d see if they could get their clients OSAMA marks registered with the USPTO? Seriously?! What were they thinking?
First of all, marks that reference a living individual require a Name Portrait Consent in order to become registered, even if the mark identifies a foreigner, and even if the foreigner is a bad guy. Secondly, registering OSAMA marks in reference to Bin Laden seems to be in such poor taste, I am sure the PTO has come up with a grounds for refusal based on just how bad this guy is. Why yes, indeed it has! In addition to refusals to register based on False Association with an Individual — Consent of Individual Needed, a few of the OSAMA applications also were refused under Section 2(a) for being Scandalous:[framed_box]The examining attorney refuses registration because the mark consists of or comprises immoral or scandalous matter. Trademark Act Section 2(a), 15 U.S.C. §1052(a). See In re McGinley, 660 F.2d 481, 211 USPQ 668 (C.C.P.A. 1981); TMEP §1203.01. The term OSAMA refers to the individual Osama bin Laden. The terrorist acts perpetrated by this individual’s organization on September 11, 2001 have caused the name OSAMA to be synonymous with the acts themselves. As such, the name OSAMA is scandalous and is not registrable[/framed_box]
I am not sure “terrorist” and “scandalous” mean the same thing, but none of these applications made it far enough to see, as they all required Osama’s consent before they could become registered. Now that Osama is no longer a living individual, we’ll have to wait and see if the PTO will take the stance that OSAMA is “scandalous.” I’ll check TESS again in a few weeks, as I presume there will be several more OSAMA applications to poke fun at, I mean, examine.
Just because someone or something (like a saying) is “famous” doesn’t mean it’s fair game for all to use as a mark. Right of Publicity laws ensure living individuals the right to determine how their name, image or likeness is used commercially. The PTO also requires Name Portrait Consents from living individuals whose names or likenesses are used as marks.
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