Category: Trademarks

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e-Trademarks listserv is broken

Hello folks.  The e-Trademarks listserv has been broken for about 36 hours now.   What triggered this was that on May 1, 2024 the listserv system did what it always does on the first day of every month — it sends out monthly membership reminders.  In the case of the e-Trademarks listserv this was about 1227 email messages with nearly identical subject lines and very similar email body texts.  Our hosting service provider (Namecheap) then compared this number (1227) with the stated limit (for our type of hosting) which is ten thousand email messages per hour, and somehow wrongly concluded that we sent so many emails that it supposedly violated the stated limit.  And Namecheap imposed a shutdown on the e-Trademarks listserv.

Yes, I know, if a person carries out complicated math, a person can eventually arrive at a conclusion that the number 1227 is actually smaller than 10000 and not larger than 10000.  And I have tried to explain this to the “legal and abuse” department at Namecheap and I have thus far apparently failed to make myself clear to them on this seemingly subtle point.

This is not the first time that Namecheap has wrongly tagged our listserv traffic as supposedly being spam.  Yes, what happens often is that hundreds or a thousand emails get sent at the same time, with identical subject lines.  But that is exactly what a listserv is supposed to do!  If the listserv were to fail to send hundreds or a thousand emails get sent at the same time, with identical subject lines, that would mean the listserv is failing at its stated function.  I have gone through this bad movie with Namecheap several times, including the following:

    • May 1, 2024, case number PRB-650-91372
    • February 21, 2024, case number JET-420-91825
    • November 6, 2023, case number LZW-313-84957
    • January 9, 2023, case number KHX-716-74404

In the previous three cases, what eventually happened was Namecheap realizing that they were wrong to shut down the listserv and then they corrected their mistake.  Now we have this most recent case and again I guess it will be a matter of time before Namecheap corrects its mistake.

Okay, I have vented.  Thank you, readers, for listening.

Some time, hopefully soon, the Namecheap people will follow along with my explanation that 1227 is smaller than 10000 instead of larger.  And they will restore the e-trademarks listserv to service.

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The Trademark Office corrects its databases

About thirteen hours ago I posted a blog article noting that the Trademark Office made lots of mistakes when it issued six thousand trademark registrations yesterday.  In that blog article, I wrote:

I imagine this blog article will eventually prompt the Trademark Office to correct its databases for the six thousand registrations that issued yesterday.  I wonder how many days that will take.

The blog article also got cited in the e-Trademarks listserv.

We now have our answer.  It took about thirteen hours.  Just now, corrected Notices of Registration have arrived and they actually cite the registration number instead the way it was before, with a gap in the text where the registration number should be.  Previously the registration number was missing from TSDR but as of now, the Trademark Office has updated TSDR to cite the registration number.  Previously, the “maintenance” tab was missing but now it is there.

For those keeping score at home, no, nobody at the Trademark Office has gotten in touch to thank me for pointing out this problem.

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USPTO trademark databases broken

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(Update:  the USPTO fixed its mistakes — see blog article.)

Yesterday (Tuesday, April 9, 2024) was registration day for two of my trademark applications.  I know this because, among other things, I am in possession of the official Certificates of Registration, which the USPTO cryptographically signed on March 24, 2024.  Which means that the USPTO has known the registration numbers since at least as long ago as March 24 (more than two weeks ago).  But the USPTO trademark databases are broken.  Continue reading “USPTO trademark databases broken”

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Pursuing rehearing and rehearing en banc in the “no more notice-and-comment needed” opinion

As I described in this blog article, I fear that a recent opinion from a three-judge panel of the Court of Appeals for the Federal Circuit will signal to the USPTO that going forward, it can duck the APA’s notice-and-comment requirements by arbitrarily deeming any rulemaking it does as merely “procedural”.

It seems to me that what needs to happen next is a rehearing, or a rehearing en banc, at the Federal Circuit, on this case (In re Chestek PLLC, February 13, 2024, slip opinion).

Two things are, I think, needed if this petition is to move forward and if it is to have a reasonable chance of success.

Pledging funds.  The applicant incurred substantial expense pursuing the appeal this far and, I believe, is only going to be able to pursue rehearing if there is support from the IP community.  Earlier today I set up a pledge system by which members of the IP community may pledge support.  As of right now there are nine pledges adding up to $6K.  I believe the applicant will only be able to proceed if at least $35K is pledged.

Committing to amici.  I think that for a reasonable chance of success, there will need to be cogent amicus briefs alerting the Federal Circuit to how much unchecked power this puts in the hands of the PTO.  This would hopefully include briefs from the relevant professional associations.  I am aware of two amicus commitments thus far from members of the IP community.

I invite readers to pledge contributions toward this petition effort.

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Has the USPTO just been given freedom from notice-and-comment requirements?

On February 13, 2024 a three-judge panel of the Court of Appeals for the Federal Circuit rendered an opinion that preserves the USPTO’s requirement that every trademark applicant reveal to the USPTO where the applicant sleeps at night.  If that had been the sole consequence, that would have been bad enough, in my view.  (I have made no secret of my view that the USPTO’s notice-and-comment activity for the “where you sleep at night?” requirement failed to give any notice at all, let alone enough notice to comply with the Administrative Procedure Act.)

The opinion, unfortunately, is likely to have consequences going far beyond merely preserving the requirement that trademark applicants reveal where they sleep at night.  The opinion is likely to embolden the USPTO, going forward, with the notion that almost nothing that the USPTO does in the future would need any ADA notice-and-comment activity.  Here is the part of the opinion that worries me:  Continue reading “Has the USPTO just been given freedom from notice-and-comment requirements?”

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Three days left to get in your numbers for the 2023 Toteboards

Three days from now will be the end of your opportunity to get your numbers in for the 2023 Toteboards (blog article).

So far we have the following results:

    • For the Trademark toteboard, we have 27 responses accounting for 6321 trademark registrations.
    • For the US plant patent toteboard, we have 5 responses accounting for 137 US plant patents.
    • For the US design patent toteboard, we have 20 responses accounting for 2111 US design patents.
    • For the US utility patent toteboard, we have 22 responses accounting for 11531 US utility patents.

If you have not already gotten your numbers in, now is the time to do it (blog article).

 

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Unauthorized Practice of Law by the USPTO – sample assignments

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Ownership of property is a matter of state law, not federal law.  Indeed for countries that are not the US, ownership of property is a matter of the law of the country involved. In the face of this, the USPTO has no business giving out legal advice about language to use in a patent assignment or trademark assignment. Continue reading “Unauthorized Practice of Law by the USPTO – sample assignments”