U.S. Trademark Office Could Shut Down Within Weeks

USPTO Headquarters in Virginia

The U.S. Patent and Trademark Office only has enough reserve cash to avoid shutting down completely for "a few weeks," according to a top agency official.

Deputy Director Teresa Stanek told the agency's employees that the agency has enough leftover fee collections from prior years to operate as usual for "at least a few weeks," in the event the federal government does not manage to pass a law increasing the debt limit, which is reached on October 1.

The agency largely funds itself without the need for congressional funds by generating filing fees, but would nonetheless run out of cash and only be able to maintain IT functions in the event of a shutdown.

Congress is in the midst of a deep partisan divide over how to avert the shutdown, with a faction of Republicans in the House joined by a few Republican Senators both trying to use fear of the shutdown as leverage to de-fund the Affordable Care Act, also known as ObamaCare.

Are the Boy Scouts of America Above the Law?

One of the more interesting pieces of "trademark trivia" is that the Boy Scouts of America (the BSA) were granted a special protection by Congress nearly a century ago, and can now threaten and accuse targets of perceived trademark infringement without having to demonstrate any likelihood of confusion whatsoever.

The BSA is one of the nation's largest and most prominent values-based youth development organizations.  According to its website, the BSA provides a program for young people that builds character, trains them in the responsibilities of participating citizenship, and develops personal fitness.

Recognizing the unique position that the BSA offers to American youth, in 1919, Congress codified a special protection for the Boy Scouts of America, making it “a body corporate and politic of the District of Columbia with perpetual existence.”  The law further provides that  “[the BSA] has the exclusive right to use emblems, badges, descriptive or designating marks, and words or phrases [it] adopts.”

Because the Boy Scouts' "exclusive right to use" these marks is not part of the federal Lanham Act that governs trademarks (which was passed by Congress in 1946), the BSA is not governed by the "likelihood of confusion" standard that applies to virtually everyone else.

Indeed, in Wrenn v. BSA, 2008 U.S. Dist. LEXIS 91913 / 2008 WL 4792683 (N.D. Cal. Oct. 28, 2008), a California District Court ruled that the “BSA need not demonstrate the likelihood of confusion because it has been granted special protection by Congressional charter,” citing The Last Best Beef, LLC v. Dudas, 506 F. 3d 333, 339 (4th Cir. 2007) and S.F. Arts & Athletics, Inc. v. U.S. Olympic Committee, 483 U.S. 522, 531 (1987), accord, Boy Scouts of Am. v. Teal, 374 F. Supp. 1276, 1278 (E.D. Pa. 1974) (enjoining use of “Sea Scouts”).

This piece of trivia is not purely academic.  Ask the “Hacker Scouts,”a non-profit organization that was recently threatened after receiving an overt cease and desist letter from the BSA that cited the special Congressional charter.

To be sure, the use of special Congressional exemptions from ordinary law is not unique to the Boy Scouts.  Major League Baseball, another storied American institution, enjoys an odd exemption from federal antitrust laws, and of course, Congress itself is exempt from most laws that apply to everyone else, such as the Fair Labor Standards Act, the Civil Rights Act, and laws against insider trading.

Congressional "Outrage" Over Chinese-Made Ralph Lauren Uniforms?

American politicians, including Senate Majority Leader Harry Reid (D-NV), expressed "disgust" and "outrage" that Ralph Lauren's sartorial donation to the 2012 Olympics were made in China, and demanded that the uniforms be "burned."

But where is Congress's disgust and outrage about this alarming trend?

I would also point out that Ralph Lauren is one of America's iconic and most successful designers, who has done more for promoting American fashion and supporting the American Olympic team, than all of Congress combined.