I can honestly say that I never thought I would have any reason to write about Nadya Suleman, the so-called Octomom, but it appears as this omnipresent, attention-seeking mother of 14 children is aggressively seeking to cash in on giving birth to 8 children just a few months ago.  In order to take full advantage of this situation Suleman has filed two trademark applications with the United States Patent and Trademark Office.  Both applications were filed less than one week ago, on April 10, 2009.  The first application, Serial Number 77711827, is for a standard character mark on “Octomom,” which would relate to the entertainment industry and particularly to an on-going, variety television program.  The second application, Serial Number 77711852, is also for a standard character mark on “Octomom,” and relates to dresses, pants, shirts and diapers.  So be on the lookout for Octomom clothing to come to a store near you!

For those of you who do not know who the Octomom is, my question to you is what rock have you been living under?  Nadya Suleman is all over the place, on TV, in newspapers and magazines and talked about on the radio.  But on the off chance that someone is wondering what this is all about, if you take a few minutes to watch the YouTube clip below, which discusses the situation and her mental health status, you will be all caught up and better able to carry on poinyent water-cooler conversations in virtually any setting.

Trademarks are often classified in categories of generally increasing distinctiveness, namely a trademark can be considered to be (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful. The latter three categories of trademarks are deemed inherently distinctive and are entitled to trademark protection because their intrinsic nature serves to identify a particular source of a product or service.  In contrast, generic marks cannot be protected because they relate only to a category or classification, such as the term “food.”  Similarly, trademarks that are merely descriptive of a product are not inherently distinctive and hence cannot be protected. However, descriptive marks may acquire the distinctiveness necessary to allow them to be protected. The Trademark Laws in the United States explain that a descriptive mark that otherwise could not be registered may be registered if it has become sufficiently distinctive. This acquired distinctiveness is generally called secondary meaning. So it is said in the industry that when a descriptive trademark has acquired secondary meaning it may then be protected.

Descriptive marks provide less trademark protection because if a term is descriptive it can be used by anyone else selling the same goods or providing the same services. For example, you could not register as a trademark “Gas Station” to be used as a trademark associated with an automobile service station.  Notwithstanding, a trademark that is descriptive in one context may well not be descriptive in another context.  For example, if you wanted to register “Gas Station” as a trademark for a restaurant that would sell hot dogs and baked beans, you probably could do so because in that context the term “Gas Station” is not descriptive, but would likely be considered suggestive.  It would be suggestive because hot dogs and baked beans can and frequently do give you gas.

So what does this have to do with Nadya Suleman?  Well, she is a mother who gave birth to 8 children at the same time.  This means she is the mother of octuplets, which further means that the term “Octomom” could be considered descriptive with respect to her.  Alternatively, it could be suggestive.  I would say that the term “Octomom” as applied to Suleman is probably on the boundary between descriptive and suggestive, some thinking it is one, others thinking it is the other.  If it is descriptive she would have to argue it has attained secondary meaning, which it probably has given that if you say “Octomom” everyone is going to likely think of Suleman.

The important thing to notice here is that the next person who gives birth to 8 children will again be the mother of octuplets, and may want to refer to herself as an “Octomom.”  This is a dangerous situation for an owner of a trademark.  If and when the trademark becomes used to describe a thing then the trademark loses any legal rights.  This has famously happened to “trampoline”, “aspirin” and “escalator” to name but a few trademarks lost because the trademark name became synonymous with the thing it was supposed to represent.

I am admittedly making something out of nothing here, to some extent at least, because the trademark applications filed are not seeking to attach the “Octomom” label to Suleman, but rather seeking to attach it to a line of clothing and to a television program.  Perhaps this was by design and with full knowledge that trying to trademark “Octomom” as representative of Suleman personally could be problematic.  The bigger problem, however, for Suleman may be that others will try and capitalize on the Octo-crazy.  At least one other applicant has filed for trademark protection for the term “Octomom.”  Super Happy Fun Fun, Inc. filed for trademark protection on March 12, 2009 (Serial Number 77689864) for products relating to computer games, toys, action figures, puzzles and more!  So be on the lookout for “Octomom” games and more at a toy store near you!

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