"Octomom" Not First To File Trademark Application

Posted by Tamera H. Bennett

April 15, 2009

The Smoking Gun website reports today that Nadya Suleman the woman who gave birth in January to eight babies filed two intent to use trademark applications for OCTOMOM on April 10, 2009.

Ms. Suleman filed for the following goods services: (click on links to see USPTO docs)

IC 016.  Disposable diapers

IC 025.  Dresses; Pants; Shirts; Textile diapers

IC 041.  Entertainment in the nature of on-going television programs in the field of varity[sp]

Ms. Suleman may have been a day-late and a few dollars short in filing her application …..

On March 10,  a business based in Austin, Texas filed an intent to use trademark application for OCTOMOM in international classes 09(computer games); 028(toys); and 041(entertainment services).

Can the word/term OCTOMOM function as a trademark?  Sure, why not.  It is a matter of developing and attaching the term to  a product and/or service and developing that as a brand.

From a branding standpoint, does OCTOMOM have negative or positive connotations in the marketplace?  I guess that depends on the individual receiver of the information.

I do not think Ms. Sulemen has yet used the term OCTOMOM as a trademark to identify the products/services listed in her application.  It is interesting that the application contains a consent stating “The name(s), portrait(s), and/or signature(s) shown in the mark identifies Nadya Suleman, whose consent(s) to register is made of record.”  By including that consent, has Ms. Suleman just made her trademark battle more difficult?  Why? Because she may have just filed information in which the trademark examiner could argue her use is  somehow a surname, generic or descriptive????

Because the applications filed by Ms. Suleman and the company in Austin are intent to use, the priorty goes to the first to file, which is not Ms. Suleman.  As a due course of procudure with the USPTO, Ms. Suleman’s applications should be suspended pending the outcome of the application filed by the Austin based company.  This will be interesting to follow.

Updated 4/16/09

This post was quoted on the ABA blog here and the Las Vegas Trademark Attorney blog here.  Trademark attorney Tamera Bennett interviewed by LAW360 here.