Scott Pilutik

I am an attorney and consultant living and working in Manhattan, focusing primarily on church/state constitutional law. I'm a recognized expert on the Church of Scientology organization. I also have strong interests in intellectual property law where it intersects with emerging media, and free speech.

I support the efforts of the Americans United for Separation of Church and State, the Freedom From Religion Foundation, the National Lawyers Guild, the ACLU, Creative Commons, and the Electronic Frontier Foundation. I am a member of the New York County Lawyers Association and the New York State Bar Association. I also enjoy (watching) hockey and (doing) photograhy.

Online I can be found on Facebook, Twitter. My resume can be viewed here. I can be reached by phone at 212.645.6241 or by e-mail at pilutik[at]gmail.com.

The Ownership of Occupy Wall St.

I’m going to post something more generally about Occupy Wall Street [hereinafter #ows] soon but in the meantime, I want to comment on a tangentially related issue that arose after one protester at Zuccotti Park took it upon himself to file a trademark application for the term “Occupy Wall St.” [Original Smoking Gun story here; Daily News story here] … and the subsequent negative fallout from amateur foray into intellectual property law [Village Voice story where Maresca denies being a “jerk” here].

Maresca claims to have visited Zuccotti Park at least a half-dozen times, where he would hand out t-shirts he made with magic markers bearing the phrase “We Are the 99%” … with “You Matter” on the back. He first attempted to trademark the term “We Are the 99%” but noticed that someone had beaten him to it [per the PTO, that dubious honor goes to Brooklynite Ian McLaughlin, who seeks to use the mark in connection with the sale of clothing, bags, and bumper stickers]. Maresca then looked up the second most popular #ows protester chant–”Occupy Wall St.”–and plunked down $975, registering the mark in his wife’s name.

It’s not hard to figure out why Maresca was immediately reviled by those sympathetic to the protesters. The act of trademarking a term which grew organically to describe not just the protests at Zuccotti Park, but indeed the country, and indeed the world, is prima facie evidence of crass commercialism. How dare a single person try and co-opt the identity of a leaderless army!

But before we crucify Robert Maresca to that huge red sculpture at the southeast corner of Zuccotti Park, let’s take him at his word and take those words in the most favorable light, because (a) his intentions may have been less crass than at first appears; and (b) he’s clearly confused as to how intellectual property works and that may only be partly his fault.

First, let’s step back and be clear as to what Maresca’s $975 would buy him (assuming the application is granted). A trademark registrant owns what amounts to a limited government-backed monopoly on a word, phrase, image, and even a scent. In order to exercise this monopoly, the registrant must use the mark “in commerce.” But it’s more than a use it or lose it policy–you must also protect the mark by actively preventing others from using it. This way, not only is your investment in the good will symbolized by the mark protected, the public is likewise protected by the elimination of consumer confusion of the source of goods and services.

But, again, taking him at his words, Maresca doesn’t appear to have filed for the mark for crass commercial purposes:

“When I checked, it was available for anyone to trademark. And if I didn’t file, who’s to say who else might have grabbed it? Everybody had a right to it, and it’s important to keep it away from people who would try to use it for negative[.]“

and

He said the trademark “isn’t about me getting rich. If it turns into a big moneymaker, I would like some of it to go back to the group.”

[both quotes from Daily News story]

The existence of the public domain apparently never occurred to Maresca before he spent nearly a thousand dollars to own a term that has come to define and defend the public domain as belonging to people and not corporations. Likewise, Ian McLaughlin’s attempt to own “We Are the 99%” is similarly ironic in a forehead-smacking way–how can Mr. McLaughlin, who comprises perhaps .000000003% of the US population, own 99%?

In an interview with the Village Voice (responding to the negative publicity surrounding his application), Maresca responded to the notion that the term Occupy Wall St. may be in the public domain.

“I just wanted to protect myself,” he says. “I didn’t know that once something has been used enough like that it enters the public domain. I think that’s great. That’s how it should be.”

It’s great that Maresca thinks it’s great that the term entered the public domain, but what he perhaps doesn’t yet realize is that the public domain is incompatible with his profiting from the mark. It’s one or the other–he wouldn’t get to restrict what he considers “negative” uses while granting him permission to distribute free perpetual licenses for uses he agrees with. That’s not how monopolies work. I would expect the PTO to reject the application and render my speculation moot but you never know.

Maresca’s instinct to buy up “Occupy Wall St.” (“defensively” or not) may be less his fault than the fault of our brand-saturated society. After all, how much of what surrounds us isn’t already owned and exploited? How many similar popular phrases or terms can you name that didn’t get there via an identifiable owner? How often are terms organically propelled into the national discourse? Trademark law and the public domain rarely intersect as a matter of law (though perhaps they should more)–and when they do intersect it’s more often with respect to an individual’s fair use rights of particularly famous marks, whose ubiquity leaves it vulnerable to popular culture uses, unlike here where a mark simply sprouted from the earth for all, on behalf of all.

Then again, a search of the US Patent & Trademark Office search system for “Tea Party” returned 176 records.