Thursday, February 2, 2017

11 Trademark Applications for ALTERNATIVE FACTS Filed In One Week

On January 22nd, President Trump's senior adviser Kellyanne Conway famously (or infamously) used the phrase "alternative facts" on NBC's Meet The Press to describe the crowds at the presidential inauguration. That same day, the first trademark application for ALTERNATIVE FACTS was filed with the U.S. Patent and Trademark Office. Over the next week, ten more applications would follow (as of today's date, only applications filed up to January 29th are visible in the USPTO's database).
The good sand services covered by the 11 applications are all across the board.  Some of those goods and services are:
As is often the case when a catchy phrase hits the news, multiple enterprising individuals hoping to capitalize on the term file federal trademark applications. Filing the applications, however, is only the beginning of the trademark registration process. Most of these applications, as with most applications for similar catchphrases, will probably not actually mature into a federal trademark registration.

For example, most of the 11 applications above were filed on an intent to use basis, which allows an applicant to file a trademark application before actually using it in commerce (which is typically required to establish rights in a mark), so long as the applicant has a bona fide intention to use the trademark in commerce in the near future. See TMEP 1101; 15 USC 1051(b). Before an intent to use application can register, the applicant is required to submit sufficient evidence to the USPTO showing they are actually using the trademark in commerce. TMEP 1103.

For the applicants of the ALTERNATIVE FACTS applications, this means they will need to actually sell the goods or provide the services listed in the respective applications and submit sufficient proof of the same to the USPTO before the USPTO will grant them a registration. Assuming, that is, that there are no other deficiencies in the applications that might prevent registration (i.e., inadequate description of the goods/services, deficient specimen, incorrect classification of goods/services, etc.). If an applicant does not meet all the requirements for registration, the application will be abandoned and the non-refundable filing fees are lost.

In sum, while it may be relatively easy to actually file a trademark application, that is only the beginning of a rather complicated legal process, and such a filing by no means guarantees a registration.

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