Trademark Hustles – New Tools in the Trickery Toolbox

“The Engines of Our Ingenuity” is a podcast presented by the University of Houston. Each episode is about four minutes long and conveys a story about how our culture has been shaped by human creativity, not only in terms of technology but also in relation to the arts and ideas. Check out the podcast here.

This podcast is all about “innovation,” which is defined by McKinsey as “the systematic practice of developing and marketing breakthrough products and services for adoption by customers.” Innovation is what your successful business clients do and it is essential to our livelihoods. As intellectual property attorneys, we develop strategies, documents, and filings to protect the innovations of our clients, whether they relate to new brands, new content or new inventions.

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The internet is a prime example of American ingenuity. The existence of the internet has spawned numerous innovations in just a few decades. Obvious examples of those are smart phones, Google, email, and social media. In the business world, the internet has changed everything. Think about how products are purchased, money transferred, and information conveyed today, as opposed to how those things happened 30 years ago. Like many innovative technologies, however, the earliest economic exploiters of the internet were on the shady side of business – the purveyors of pornography. Whenever there is innovation, darker side of humanity quickly finds a way to capitalize on it.

Scammers, for instance, rely on deception and believability to take advantage of their victims. There are scammers everywhere, including in the seemingly mundane realm of trademark registration.

United States Patent and Trademark Office (USPTO) trademark application records are public. In addition to its name, a trademark applicant is required to provide a street address and (since February 15, 2020) an email address. Optionally, the signatory for a trademark applicant may also provide a phone number. The USPTO claims that such an email address and phone number will not be made public, but experience teaches us otherwise.

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Snail mail trademark scams have been in play for a very long time. Armed with specific trademark information and the trademark owner’s name and address (from the USPTO public records), the scammer sends an official looking document by mail to the trademark owner stating that some action is immediately required. That document further states that, upon receipt of payment from the trademark owner, the necessary action will be taken, and thus the trademark rights preserved. These notices are bogus and should be ignored!

Recently, we’ve noted that scammers are now trying to reach out directly to trademark owners via email and by phone.

By email, the scammer’s communication may likewise take the form of an official looking communication requiring urgent action (and requesting additional personal information and/or payment) to preserve that trademark owner’s trademark rights. The scammer’s message often appears as if it comes from a legitimate company or even a governmental agency, using names that resemble the USPTO. Again, these types of communications are bogus, issued by scammers to prey on the inattentive and make a quick buck.

In the case of phone trademark scams, a caller may impersonate a USPTO employee by “caller ID spoofing” – where the caller deliberately falsifies information on your caller ID display to disguise the caller’s identity. That caller, then using publicly available trademark owner information to gain credibility, tries to seek additional financial information. Such a call may even be accompanied by a fake written communication or invoice “from” the USPTO.

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The hallmarks of all these types of fraudulent activity are that they are unsolicited communications, they state some sense of false urgency for action to be taken to protect trademark rights, and they seek payment (often excessive) or seek financial information from the trademark owner. Alert your clients to be vigilant for communications related to these dangerous scams. It is not a matter of whether your client will be contacted by such a scammer, but when that will happen.

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