Cognate's Trademark Blog

The LG ‘G Pen’ – Social Media Mines Gold From The Trademark Office

Social media sites following the status of application filings at the United States Patent and Trademark Office are mulling over the news that smartphone maker LG may be producing a new stylus for its smartphones. Perhaps LG is happy with the publicity.  Or, they may not be ready for the information to be discussed furiously around the globe. Not only is privacy gone, but it’s gone in a flash all the way to  the far-flung corners of the product-planning globe.

Companies dealing with red-hot competition in fields like household cleaning products or frozen food have long monitored the records of the United States Patent and Trademark Office to try to get a feel for what their competitors might be up to next. There is nothing new about this practice. Companies often defer filing their trademark applications, or try to somehow mask their goods or hide their actual product of interest, by including lots of other goods and services in the application.

There is a governor on this procedure imposed by the Trademark Office which goes under the name “bona fide intent to use.” This is the principle which says that if you file a trademark application, you must have a bona fide intent to actually use that on a product or service. The Trademark Office fear has always been that competitors would start filing hundreds of applications to either monopolize possible rights in every imaginable name brand, or to block attractive names from use by competitors. Congress was careful in 1988 to say that applications filed for marks not yet used must at least show that applicants for federal trademark protection had a bona fide intent to use the mark that they file.

It is interesting to note that Congress’ fears came true very soon after the law went into effect in 1989, though in very different ways and for entirely unforeseen reasons. With the advent of the Internet came Internet domain names. As trademark law was interpreted by the courts, it became clear that there was going to be nothing wrong with registering a domain name, bona fideintent be damned. This laid the foundation for individuals and companies to be able to hunt down and lock up every imaginable name and phrase, a sort of cyber land-grab.

Register the domain name and then wait for someone who wants it to come back to you so that you can sell the name to them at a profit. In essence, domain name owners race to lock up a domain name registration before someone else thinks of it. Then they hold on to an inventory of domain names, to be sold to the highest bidder.

There are certain restrictions. Use someone else’s name as part of a domain name and consumers will be confused; those who follow this practice do so in bad faith. (But that’s a topic for another day.)

In the Trademark Office, there has always been a requirement of bona fide intent. You need to have some basis besides either trying to keep competitors out of the market, or throwing them all off track about your potential new product or service. There are some tricks that sophisticated trademark filers use to mask their intentions. (One of those tricks, a controversial one, is to file in the name of some kind of “phantom” company, so that the true identity of the owner is not revealed. This type of skullduggery is put into fairly infrequent use, but it does happen.) Even then, nothing can be completely secret about the fact that some company is trying to register a certain mark.

So when we look at new media reports about a possible LG stylus smartphone development, it is interesting that intelligence is being widely reported to the tech media based only on the fairly remote and mundane information of a trademark application filing. When LG files a trademark application for “G Pen,” the rumor mill gets busy.

Some people might say “too-much-information” indeed. I have no idea how many people read, for instance, but someone is tracking the fact that LG filed a new trademark application for this word and spurred encouragement for either fans of LG, or “enemies” of Samsung’s Galaxy product that a competitor would be in the market. This news was reported in lots of blogs, places called Linkcom, Usertribe, Gizmodo India, MobileBurn, Slashgear, and other places. I think it was reported on sites in other languages, and outside of the U.S. as well, on and, and Fredzone.

Even if true, and even if all these websites are on the right track, the LG stylus is hardly the next Tesla automobile coming on the market. The Trademark Office records have been highly automated for a long time. In the 1990s, the Commissioner for Trademarks, Anne Chasser, decided that she wanted the United States Trademark Office to be the most progressive e-commerce office in the United States government. The Trademark Office was pioneering electronic filing of applications for government protection and providing transparent record-keeping systems which allowed the public to track its goings-on. No one really had a great worry about privacy for things filed in the Trademark Office, or too much concern about corporate secrecy. But applicants in the Trademark Office better be aware of the prying eyes not only from its competitors but from the bundle of blogs which use the Trademark Office records to help it closely follow an industry.

This post originally appeared on Forbes


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