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Intellectual Property Law

: Patent Arcade

Video game trademark dispute brewing over OCTOMOM...

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On April 10, 2009, Nadya Suleman, who became famous in January when she gave birth to octuplets, filed a pair of trademark applications at the USPTO. She wants to use the mark for disposable diapers, cloth diapers, dresses, pants, shirts and entertainment in the nature of ongoing television programs in the field of "varity" [sic].

Sounds logical, right?

The only problem is that Austin, Texas-based Super Happy Fun Fun Inc. had already filed an application on March 12 for OCTOMOM for computer game software; downloadable mobile entertainment software such as ring tones, screen savers and wallpaper graphics; toy action figures and accessories; puppets; balloons; chess sets; golf balls; snowboards; and even Christmas tree ornaments.

When asked about the strengths of each side's case and who might end up with the mark, attorney Richard Stockton, of Banner & Witcoff, Ltd, believes that Suleman will prevail because Super Happy's trademark application likely will not survive the trademark office.

Stockton believes Super Happy's trademark application will not survive because US trademark law prohibits registration of a mark that comprises a name identifying a particular living individual without her written consent.

More to the point, the US Trademark Trial and Appeal Board, an administrative tribunal that hears appeals from applicants whose marks have been refused registration, has interpreted this particular aspect of US trademark law as prohibiting "the registration of marks containing not only full names, but also surnames, shortened names, nicknames, etc., so long as the name in question does, in fact, 'identify' a particular living individual."

Indeed, in the circa 1993 case that produced the preceding quote, In re Sauer, the TTAB upheld a refusal to register "BO BALL" (and design) for a ball on the ground that "BO" corresponded to the nickname of athlete Bo Jackson, that consumers would draw a connection between Bo Jackson and the "BO BALL" ball, and that Bo Jackson had not given written consent to use his (nick)name.

Stockton does not believe this case is much different. "'Octomom' seems to be a ubiquitous identifier for Suleman. Any attempt by Super Happy to claim that it just thought of the name itself, or that consumers would not identify 'Octomom' with Suleman, would seem to be a very difficult path to blaze in view of all the news coverage on Suleman and prior interpretations of US trademark law."

Stockton also points out that if Super Happy were to prevail at the trademark office, it would seem to run counter to another body of law, the right of publicity. The right of publicity is the right of each individual to control the commercial exploitation of her identity, and legally the right of publicity protects Suleman as much or more than US trademark law.

Super Happy Fun Fun, Inc.'s trademark application is serial number 77689864.
Nadya Suleman's trademark applications are serial numbers 77711852 and 77711827.

Full post as published by Patent Arcade on April 21, 2009 (boomark / email).