The big (okay, most talked about) story in trademark news today is that controversial mother-of-eight (fourteen really) Nadya Suleman has filed a trademark application for OCTOMOM. Well, it turns out somebody beat her to it!
An earlier OCTOMOM trademark application, Serial # 77/689,864, has been filed by Super Happy Fun Fun, Inc. However, it’s an intent-to-use (“ITU”) application. An ITU application allows someone to obtain clearance and approval for federal registration of a trademark before committing to all of the costs of marketing and promoting the mark. That is, an ITU application permits one to go through the examination and clearance procedure of federal registration without having to show actual use in commerce.
So who has the priority rights to the OCTOMOM trademark, Nadya or Super Happy Fun Fun? (Of course, this question assumes that either have rights.) Generally, the first to use a mark in commerce is the owner of that mark. The primary exception is when an ITU application for a similar mark is filed prior to the adoption and use of the mark by another. The Super Happy Fun Fun application was filed on March 12, 2009. But I can recall mentions of Nadya as “Octomom” at least as far back as January. Therefore, the ITU application may not qualify for the exception, as it wasn’t filed prior to adoption and use by Nadya. She’ll have to show that there was use in commerce prior to March 12, 2009, but seeing that she was everywhere for awhile, that may be easy enough.
On a related note, why would she want to be called Octomom? I never saw it as a particularly complimentary moniker. And doesn’t she have fourteen children? Quatorzemom?!? I’m off to file a trademark application. 🙂