Q&A: How Can Someone Trademark ‘Occupy Wall Street’?

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Lucas Jackson / Reuters

A member of the Occupy Wall Street movement walks among the crowd in Zuccotti Park.

CNN reports that a couple from Long Island, N.Y. is seeking to trademark “Occupy Wall Street” to sell T-shirts, bags and other items featuring the phrase. Forget the obvious irony in the effort to make money off a leaderless movement that rails against greed. Can the trademark-seeking couple pull it off?

Though she wasn’t permitted to speak about the specific case, Cynthia Lynch, administrator for trademark policy and procedure for the U.S. Patent and Trademark Office, talked to NewsFeed to explain the trademark process.

Is the effort to trademark a phrase common?

Yes, we have word marks and design marks and ones that have words and design elements combined, but the word marks are the most common. Sometimes we get single words and sometimes multiple.

What about trying to trademark a movement?

That is not something we keep statistics on, but anecdotally, when there is a catchphrase or a quote or something prominent in the news, in many instances we see one or multiple parties apply for a trademark for it in close proximity.

(PHOTOS: Occupy Wall Street Protests in New York City and Beyond)

What have been some popular culture-driven trademarks?

When “shock and awe” was used, shortly after we saw several applications that included that phrase. Other ones I’ve seen were Charlie Sheen trademark application filings and the Jersey Shore trademarks for a number of particular people, catchphrases and nicknames, such as an array of “Snooki” marks. I was up watching Jimmy Fallon and he had a two-minute discussion on trademarks with ‘The Situation.”

We still have applications pending (for Navy Seal Team 6). The ones that really made the news were applications filed by Walt Disney Co. and they ended up withdrawing.

How do you even trademark a phrase?

If applying for T-shirts (a good), you can take a picture of the T-shirt and where the mark appeared and how you are applying it on the T-shirts you are selling. If (the good) is not already in use, you have to have a bona fide intent to use in interstate commerce and before you can register, you have to show use.

Do you have to have a connection to something to trademark it?

They do have to have a connection to the goods and services. They must show a connection to the mark and that they believe they are the owner of that mark and believe they have the exclusive right to use it. You can’t register a mark if you falsely register a connection. If you are using a name of a famous person and have no connection to them, you will get a refusal. There are lots of provisions.

(PHOTOS: ‘Occupy Wall Street’ For Sale)

What is the process of examining a trademark application? 

We have a core of attorneys that examines the applications, and we have trademark statutes that govern what can be registered. If any reason appears that we can’t register the mark, we send something called an office action and the applicant has an opportunity to respond. The amount of back and forth can lead to a variation on how long it takes. Our overall average (review) time is in the neighborhood of 11 months and usually between two-and-a-half to three-and-a-half months from when filed we take the first action.

What if people disagree with someone’s attempt to register a trademark?

If everything looks fine, we publish it for opposition in the electronic Official Gazette for Trademarks and the public can see what is moving forward and have an open window (to challenge it). A board of judges holds an opposition proceeding and does a quasi court case.

How many applications do you process annually?

The overall classes for fiscal year 2010 was 368,939 and we are targeting 385,000 for 2011.

MORE: Twitter Drops Lawsuit in Exchange for ‘Tweet’ Trademark

Tim Newcomb is a contributor for TIME. Find him on Twitter at @tdnewcomb. You can also continue the discussion on TIME’s Facebook page and on Twitter at @TIME.

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