There's a battle brewing inside the U.S. Patent and Trademark Office over a new requirement in their registered trademark application process. Now, some applicants are being asked to prove their residence, sometimes with a green card. Paul Singer of WGBH’s New England Center for Investigative Reporting spoke with WGBH Radio’s Jeb Sharp about the shift. This transcript has been edited for clarity.
Jeb Sharp: Before we get to how you stumbled on this story, let's just explain how you register a trademark.
Paul Singer: Right. Two different things, of course, patents and trademarks. Patents are the machine that you invent. Trademarks are the name of the thing that you want to use in commerce. And the reason that you register those things is so you protect your right.
Sharp: So what's the shift here? What did you get wind of?
Singer: The Trademark Office has been flooded with fake or fraudulent applications, mostly from China. And they were trying to figure out a way to stop this flood of bogus applications. So they said, 'OK, if you are a foreign person, you have to have a U.S. lawyer who helps you do this.' All straight up, seems reasonable.
What they then did was say, 'Oh, and if you're a foreign person declaring a U.S. residence, you have to prove your immigration status is legal.' And this was not in the rules. It was in a guidance document they wrote to their own staff saying, make sure you ask these people, basically, for their green cards.
The staff, and some folks on Capitol Hill as well, are looking at this thinking, 'What exactly happened? We thought you were just trying to keep out bad actors from foreign countries. Now, are you trying to interfere with immigrants who are in the innovation economy?'
Read more: Exclusive: New US Trademark Rules Raise Concerns About Immigration Enforcement
Sharp: And is that how staff are interpreting it?
Singer: That's certainly how the staff who I've been able to contact have been interpreting it, that they think that there is now some sort of immigration enforcement component of this, even though the officials at the trademark office are telling me flat out: We are not, we are not, we are not. We are not trying to do that. But the way the guidance is written, it certainly appears that that's what they're asking for.
Sharp: And what's the reaction outside the trademarks office?
Singer: The fact of the matter is that immigrants are a huge part of our innovation economy. I talked to Jeremy Robbins, the executive director of an immigration advocacy group called the New American Economy. He said: “We absolutely want to be sure our laws are being followed, but it's a very, very strange place to put the emphasis in the face of things that could benefit many Americans very, very widely.”
Singer: The question then becomes, Do you want to be using the trademark process — which is how people bring innovations to market, it's part of this growth economy — do you want to be using this as a way to track immigration status? And are you therefore discouraging immigrants from trademarking new products? If we think a green card is the threshold now, do we really want to exclude everybody else from filing a trademark? Keep in mind also, there's no requirement that you be a U.S. citizen or that you live in the United States to get a trademark.
Sharp: And yet…
Singer: And yet, there are a whole bunch of new documentation requirements, and all those documents go into a public file where anybody can see them. It seems like it's going to be a discouragement.
Sharp: And people who are grappling with this, how did they assess whether there is a chilling effect? What effect it might have on that, for instance, in an innovation and tech hub like Boston?
Singer: Nobody knows yet, because these rules went into effect Aug. 3. There has not yet been time to see exactly what the fallout is. And I'm told there is still a back and forth between the staff and the headquarters about exactly what is going to be required and how it could be required.
Sharp: Does anything else strike you about this? Does it align with any other new policies you've seen in other agencies?
Singer: Well this has been the question that I can't quite get to the bottom of, honestly, which is why they're doing this in trademarks. There obviously is a broad effort within the Trump administration to crack down on immigration scofflaws. And it's showing up in a bunch of agencies around the government. We don't know whether this came from some sort of higher level effort to try and focus on immigration or it was just an unintended consequence of trying to do what essentially everyone agrees is the right thing, which is to prevent Chinese meddling in the trademark area.
But I think that honestly it is the fact that this new documentation requirement showed up during this time of heightened enforcement of immigration that has sensitized everybody and made everyone concerned that maybe something else is afoot.
