Octomom Trademark Dispute: Texas Trademark Attorney Tamera Bennett Interviewed

Posted April 17, 2009 Texas trademark lawyer Tamera Bennett was interviewed yesterday by LAW360, an online legal newswire, to voice her opinions regarding the potential trademark dispute over trademark applications for the term "Octomom."

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Stage Set For Tussle Over 'Octomom' Trademark

By

Jesse Greenspan

Law360, New York (April 16, 2009) -- A dispute could be brewing between a video game company and Nadya Suleman, who became famous in January when she gave birth to octuplets, with both seeking to trademark her media nickname — “Octomom.”

In a pair of April 10 filings with the U.S. Patent and Trademark Office, Suleman said she wanted to use the Octomom name on disposable diapers, cloth diapers, dresses, pants, shirts and entertainment in the nature of ongoing television programs in the field of "varity" [sic].

But Austin, Texas-based Super Happy Fun Fun Inc. had already filed an application on March 12 seeking to use the Octomom name in connection with computer game software; downloadable mobile entertainment software such as ring tones, screen savers and wallpaper graphics; toy action figures and accessories; puppets; balloons; chess sets; golf balls; snowboards; and even Christmas tree ornaments.

Tamera H. Bennett, founder of the Bennett Law Office PC, a boutique copyright, trademark and entertainment law firm, said the Texas company gained a big advantage by filing first.

“Because the Texas folks were first to file, anything that comes subsequent to them should be initially refused a registration or suspended,” said Bennett, who is not representing either party in the matter.

If Super Happy Fun Fun does get the mark approved, then it will have 36 months to file a statement of use, she added.

Suleman, meanwhile, has a number of options. She could file an injunction to try to stop Super Happy Fun Fun from using the mark, she could file an administrative proceeding in opposition to the trademark if it got approved, she could reach a settlement with Super Happy Fun Fun, or she could simply abandon the Octomom name, according toBennett.

She said it would probably be six months before either application is reviewed by an examiner.

“Part of what comes into play ... is the subjective reasoning of the trademark examiner,” Bennett said. “That's the person who's just randomly assigned to review these applications.”

She doubted, however, that Super Happy Fun Fun's mark would get refused on descriptiveness grounds.

When reached by telephone, an attorney for Suleman simply said, “Registering a trademark which is a nickname of a living person requires the consent of the living person.”

A call to Super Happy Fun Fun, which markets such video games as “DUI: The Long Drive Home,” “Notorious B.I.G: Gettin' Paid” and “Magic 8-Ball,” was not immediately returned on Thursday.

On its Web site, the company describes a game called “Fertile Myrtle (Formerly Octomom)” for iPhone and iPod Touch.

“How many babies can Fertile Myrtle have!?” the description says.

“Press down on Fertile Myrtle's swollen belly, and another adorable bundle of joy will be brought into the world,” the description adds. “The babies must be caught by Fertile Myrtle's mother. Hold down on Fertile Myrtle's belly to charge, which shoots babies out faster and increases your chances of delivering twins! Tilt for better aim.”

Each baby earns welfare money, and having babies while the paparazzi is in the room earns a cash bonus. Money is used to buy fertility shots.

Reprinted with permission from Portfolio Media, Inc.