fake news

The term “fake news” has entered our political lexicon as an epithet directed at journalists and news organizations. Professional journalists, who take great pride in their profession and the role they have historically played in our democracy, are offended by the tone of civil discourse on this issue. Now, one group of journalists, The Florida chapter of the Society of Professional Journalists (SPJ), has taken action with a novel “intellectual property” approach. They claim to have filed a trademark registration application for FAKE NEWS (we could not find a record of it).

The SPJ’s approach would work like this. After filing the application, every time someone misuses the term FAKE NEWS, the organization would send cease and desist letters claiming trademark infringement, putting the recipient on notice that journalists care and that their speech may incur liability.  Here’s a slick presentation: 

It sounds good on paper but, really, you have to have trademark rights to enforce them and merely filing a trademark application does not bestow those rights on the applicant. Perhaps, if the trademark registration is granted those rights may be enforceable but then only against infringers who are using the trademark for the same services, presumably services related to journalism. You couldn’t use this approach to stifle speech.  Accusing everyone of infringement is a very tricky proposition.

It’s not common to use the trademark process as a political tool in this way so we did some digging into the PTO database to see who has registered or is trying to register FAKE NEWS as a trademark and what goods and services the applicants listed.  The results of our search are interesting and disconcerting.

There are 22 “live” entries in the PTO database that incorporate the terms FAKE NEWS, seven registrations and 15 pending trademark applications.  Of these trademarks, just 9 are for the exact terms FAKE NEWS.  Three of them are actually registered trademarks.  The remaining are pending applications that may or may not be granted The entries cover a variety of goods and services.  Here’s a brief summary

    *    publication of online news
    *    pens
    *    news agencies
    *    beer (Reg. No. 5690632)
    *    peer-to-peer photo services
    *    computer game software (Reg. No. 5596435)
    *    beverage glassware
    *    board games (Reg. No. 5596435)
    *    online retail store services

The list is innocuous enough and some of the trademark owners appear to have legitimate businesses that are leveraging the political popularity of the terms.  The others appear have future hopes of cashing in. One of the more interesting applications was filed by Evgeny Berezovskiy of the Russian Federation (Ser. No. 88456024) for

News agencies, namely, gathering and dissemination of news; News reporter services in the nature of news analysis and news commentary; News reporters services; News syndication for the broadcasting industry; News syndication reporting; Entertainment services in the nature of live visual and audio performances, namely, musical, variety, news and comedy shows; Entertainment, namely, television news shows; Providing news and information in the field of sports; Providing news in the nature of current event reporting; Providing an Internet news portal featuring links to news stories and articles in the field of current events; Providing current event news via a global computer network; Providing information, news, and commentary in the field of current events via the Internet; Providing sports news

Quite a list! This application plays into the nefarious role Russians played in the 2016 election.  Who knows what Mr. Berezovskiy’s motivation is.  Humor? Parody? Espionage? In any event, the PTO issued an office action refusing his application based upon confusion with the prior existing trademark applications incorporating the terms FAKE NEWS. In other words, Mr. Berezvskiy filed too late! Too bad. 

— Adam G. Garson, Esq.