Consumers Stay Back!

Sometimes, trademark attorneys and professors try to make a point through the use of legal actions, lawsuits. And sometimes it goes wrong.

Recently, a law school professor teaching trademark law opposed registration for the trademark RAPUNZEL for toys. She argued that she and other consumers would be denied access to healthy marketplace competition for “products that represent” Rapunzel if private companies are allowed “to trademark the name of a famous fairy tale character in the public domain.” In other words, this professor argued it would harm consumers if a generic character in the public domain (no longer protected by copyright) was suddenly pulled back and locked into a trademark (meaning the owner of the trademark can police how the word RAPUNZEL is used).

The Trademark Trial and Appeal Board (TTAB) overturned a 2018 decision and found, however, that this professor was not entitled to oppose registration because she is merely a “consumer”. She didn’t even have standing because she was “only” a consumer. In other words, the TTAB found that only “commercial” plaintiffs have a claim in this situation - e.g. competitors like other toy makers who want to sell RAPUNZEL products.

I find this decision baffling, to be honest. The whole point of trademark law is to protect the consumer by identifying the source or origin of a product, so consumers can vote with their money and/or rest assured they are buying the products they intended. But, if the consumer can’t legally intervene, what’s the point? What recourse does a consumer have if a bad actor seeks to register a trademark that is likely to harm the consumer or a related class of consumers?

I guess in this case, the professor should form an LLC and start selling Rapunzel dolls if she wants to successfully block registration.