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November 08, 2012

USPTO initially refuses trademark application for "Gay Is Good"


The United States Patent and Trademark Office sent a November 6 letter to Ackerman Brown PLLC, Executors of the Frank Kameny estate, preliminarily refusing the trademark of the phrase "Gay Is Good" (which Kameny coined in 1968). The reason cited for the refusal is that the specimen provided with the application, a photograph of a button, does not show the phrase's use in commerce.

Here are excerpts from the USPTO letter regarding application serial number 85676494:




The specimen does not show the applied-for mark used in connection with any of the services specified in the application, and therefore is not acceptable. An application based on Trademark Act Section 1(a) must include a specimen showing the applied-for mark in use in commerce for each international class of goods and/or services identified in the application....

In this case, the specimen is a photograph of a button. It does not demonstrate use of the mark with the applicant’s services because it does not reference the services or show use of the mark in connection with them in any way. The specimen only shows use of the mark with a button, and use of the mark with association and the other identified services cannot be implied from use with a single button, which is a good, not a service.

A service mark specimen consisting of advertising or promotional materials generally must show a direct association between the mark and the services for which registration is sought....

Pending receipt of a proper response, registration is refused because the specimen does not show the applied-for mark in use in commerce as a trademark and/or service mark for the identified goods and/or services.

I knew and worked with Frank Kameny for over 33 years, and I think he would be horrified at the attempt to monetize and restrict the use of the slogan that he coined for the entire gay rights movement. That is just my personal opinion. It will be interesting to see what justification Ackerman Brown provides in response to the USPTO letter.

(Hat tip: Charlie Watson. Photo courtesy The Kameny Papers)

Update: The USPTO letter is signed by Trademark Examining Attorney Susan R. Stiglitz.

Update 2: Ed Nunes, a trademark expert at the Law Office of Bambi Faivre Walters, PC, provides background information on the importance of "Use in Commerce" in trademark applications. One wonders whether Ackerman Brown filled out the form without hiring a trademark attorney who knew the pitfalls described by Nunes.

Full disclosure: I, Rick Rosendall, was released from a lawsuit over the Kameny Estate at a show cause hearing in D.C. probate court on May 11, 2012. I was involved in the Kameny Papers Project, which was launched by Charles Francis in 2006 to preserve Kameny's historic papers and picket signs.


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