Trademark and Trayvon Martin

Last week, I came across an article that reported on a number of trademark applications filed by the family of Trayvon Martin. A quick search of the U.S. Patent & Trademark Office’s database reveals four trademark applications.  Of these four applications, two list Mr. Martin’s mother Sabrina Fulton as the mark owner.  Martin Joseph Markley, of Overland Park, Kansas, has filed an application for the phrase, “If I had a son, He’d look like Trayvon.”  Marcus Singletary of Los Angeles, California filed the fourth application, for the phrase “Justice for Trayvon.” Let’s look at each filing one at a time.

The reaction to Ms. Fulton’s applications was quick, and severe. In truth, I was a bit surprised when I learned that Mr. Martin’s mother had filed for a trademark application.  However, after reviewing the application, I can see several defensive reasons why the family would file for Trayvon-related trademarks.  First, consider this article from the LA Times, here.  Merchants and other opportunists are already selling t-shirts and hoodies that make direct and indirect reference to Trayvon Martin’s name and likeness. It is highly probable that at least some of these merchants are making a few dollars off of this incident, without ever obtaining consent from Trayvon Martin’s family.

Second, and more importantly, each of Ms. Fulton’s applications are intent-to-use applications.  The purpose of an intent-to-use application is to allow an entity to reserve a trademark before the entity actually conducts business.  The applicant is afforded six months to demonstrate use of the trademark in commerce. At the end of the six month period, the applicant must either pay a fee and obtain an additional six month extension, or abandon the application.  In this case, there is no evidence that the Martin family intends to sell any product.  However, by filing their trademark applications, they have effectively blocked others from filing a trademark application, for the respective marks, in international class 09 – digital recordings and videos.

One concern that I have with this strategy, if it truly is a defensive filing, is that they did not attempt to file for a wider range of goods, and a wider range of marks.  A truly comprehensive defensive trademark strategy would include goods such as t-shirts, hoodies, and other similar types of products that one would expect to be popular in the marketplace.  In this case, Ms. Fulton’s application for “Justice for Trayvon” was filed on March 21, 2012.  Mr. Singletary filed an application for the exact same phrase, but for hooded sweatshirts, two days later.  It is also unclear why the Martin family did not seek to file a trademark application for the name “Trayvon.”  This would have potentially enabled the family to quash other variations that included the word Trayvon.

Under that context, however, there are challenges to implementing such a comprehensive strategy. With trademark application fees starting at $275.00 per application, per class of goods, before any attorney’s fees, the cost of applying for multiple marks in multiple classes of goods can get out of control quickly.  Also, while I am sure that the trademark issues are important to the Martin family, it is clearly not the most important issue they face at the moment. Lastly, even if the Martin family were to successfully register their trademarks, with a robust black market in place, it is highly likely that enforcement of their trademark rights would be both expensive and of questionable effectiveness.

With respect to the applications filed by non-family members, each faces challenges to registration. Like the applications filed by the Martin family, Mr. Singletary filed an intent-to-use application.  Mr. Singletary will be required to produce a specimen or a sample of his hooded sweatshirt in the next six months. If he is unable to do so, he must pay the extension fee or abandon the application.  Additionally, as his trademark refers to a specific person, it is likely that the USPTO examining attorney assigned to review this application will ask Mr. Singletary to demonstrate that he has permission to use the name Trayvon. This is also an issue for Mr. Markley of Overland Park, Kansas. Like Mr. Singletary, he too will likely be asked to affirm that he has received consent to use Trayvon Martin’s name. Mr. Markley will likely run into issues with his specimen and specimen description, as well as demonstrating that he is truly using the mark in commerce.