Thursday, October 15, 2009

Wiktionary and the USPTO

A few months back (my web reading backlog is ginormous, really) I ran across a mention that the USPTO had denied a trademark application for a Twitter-related trademark on the basis that "tweet" is "merely-descriptive" on the basis of a Wiktionary entry defining "tweet".  Twitter's own application for "tweet" was (as of July) still outstanding.  Now, wouldn't it be funny if one of Twitter's own marketers was behind the editing of that Wiktionary article?

Of course, brand creators always walk a fine line in trademark, lest their descriptive term become "generic".  I still think it's very touchy for the USPTO to be using Wiktionary as evidence of "mere descriptiveness", however, especially since Wiktionary is just as much at risk to being edited by anyone at all as Wikipedia is, a situation which has led to Wikipedia being essentially banned from the federal courts.  Not to menion the New Jersey court that held that Wikipedia's volatile nature means it doesn't meet the evidentiary standard for judicially noticable facts.  I don't see how the trademark examination process is so distinguishable that these precedents should not apply there as well.