Disabilities Advocates Spar Over Broad Trademark

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  • Petition argues ‘invisible disabilities' is a generic term
  • TM holder notifies Facebook competitor's page May infringe

By Joseph Marks

Aug. 11 — An organization that advocates for people suffering from conditions that aren’t readily apparent to outside observers, such as fibromyalgia and digestive disorders, is taking heat from some of the people it aims to serve for trademarking the phrase “invisible disabilities.”

The furor began early this month after the group, the Invisible Disabilities Association, notified Facebook that another group called Invisible Disability Project might be infringing its trademark.

Facebook temporarily took down the group’s page. The social media site agreed to restore the site Aug. 10, according to an Invisible Disability Project representative.

The Invisible Disabilities Association holds trademarks for “Invisible Disabilities Advocate,” an earlier name for the organization, and “invisible disabilities” but not for “Invisible Disabilities Association.”

The “invisible disabilities” registration drew the ire of an account holder named Jane DoeCrips on the online petition site Change.org, which posted a petition asking the Patent and Trademark Office to cancel the mark. The petition argues that “invisible disabilities” is a generic term for a group of people rather than a phrase that simply describes the association’s work.

“Trademarking ‘invisible disabilities’ is akin to trademarking any racialized, sexed, gendered, or classed identity category,” the petitioners wrote. They compare it to trademarking the phrases gay, Native American or economically disadvantaged.

That argument could win support during a Trademark Trial and Appeal Board review, intellectual property law professors consulted by Bloomberg BNA said, but the cost of a cancelation proceeding could be prohibitive. The median cost for a trademark opposition and cancelation at the PTO was $95,000, including legal representation and filing costs, according to the American Intellectual Property Law Association's 2015 economic survey.

Like Trademarking Gay or Native American

The term “invisible disabilities” dates back to at least the early 1990s, the petition states. The Invisible Disabilities Association sought its trademark in 2012, according to PTO records.

The petition, which includes a graphic of a Campbell’s Soup can carrying the phrase “invisible disabilities” and the hashtag #notabrand, had 1,386 signatures Aug. 11 afternoon.

Jane DoeCrips is a collection of disabled people and their supporters, according to an Invisible Disability Project representative. There’s significant overlap between the Jane DoeCrips group and the group that manages the Invisible Disability Project community, but the two aren’t one and the same, according to the representative who asked not to be named because Invisible Disability Project members prefer to speak with a unified voice as the Invisible Disability Project Community.

Group members have also received harassing Internet comments in the past and many are wary of identifying themselves individually, the representative said via Twitter direct message.

The Invisible Disability Project has a trademark application for the phrase “Invisible Disability Project” but no granted trademarks. The group considers itself an education and advocacy community and has no current commercial plans, the representative said. The group considered selling T-shirts at one point, but decided against it, the representative said.

The petitioners have not directly contacted the Invisible Disabilities Association, spokeswoman Deb Hileman told Bloomberg BNA by e-mail, though several critics have tweeted about the organization since Aug. 7. Critics have also posted negative reviews of the association on the site greatnonprofits.org.

The IDP representative disputed not contacting the IDA. An IDP community member emailed IDA after receiving a letter from the association stating IDA would strongly oppose the group’s trademark application, the IDP representative said.

Seeking a Broader Trademark

The association chose to trademark “invisible disabilities” rather than “Invisible Disabilities Association” to extend the mark to fundraising and advocacy programs, such as “Invisible Disabilities Week” and an online “Invisible Disabilities Community,” Hileman said. IDA also wanted to “distinguish … our organization and our education and advocacy programs from other organizations,” she said.

IDA manages several awareness campaigns, publishes a pamphlet titled “But you look good” and hosts an annual awards gala, according to the nonprofit’s website.

IDA notified Facebook that the IDP page might be infringing its trademark, Hileman said, but she stressed that Facebook made the decision to take the page down.

“IDA does not want to infringe on any individual’s right to use the term invisible disabilities; this claim is simply not true,” she said. “On the contrary, we believe our organization has brought significant awareness to invisible disabilities through our identity and our programs. We are just trying to protect our organization and our programs as provided for in U.S. patent and trademark law.”

Asked if IDA would consider voluntarily abandoning its “invisible disabilities” trademark and seek trademark protection for “Invisible Disabilities Association” instead, Hileman responded that IDA stakeholders and Facebook followers have not expressed any concern about the mark.

“We recognize the concern that the petition writers and a few others have expressed, but in our 20-year experience advocating for those with invisible disabilities, we have found that while people associate closely with the term, many do not see it as a singular expression of their identity—of who they are as individuals,” she said.

As a general matter, trademarks only affect actions in commerce, so IDA’s trademark would not bar an individual from describing herself as having an invisible disability. It would, however, make it legally complicated for another nonprofit or advocacy group, such as IDP, to use the words invisible disability” in its name.

The Generic Argument's Best

IDA’s critics have a solid argument that IDA’s trademark is too generic and should be canceled, said Betsy Rosenblatt, a professor at Whittier Law School and director of the school’s Center for Intellectual Property Law.

“If their trademark was ‘Invisible Disabilities Association,’ that absolutely makes sense, just like the American Heart Association or the American Medical Association,” Rosenblatt said. “But the American Medical Association would be overclaiming to say they own the word ‘medical’ in association with professional services.”

IDA critics say they’re offended by the trademark, but the most reasonable argument for cancelation would be that “invisible disabilities” is a generic term that can’t be defined by a single organization, Rosenblatt said.

The PTO can deny or cancel a trademark that’s considered offensive. For example, a federal judge canceled trademarks for the Washington Redskins football team in 2015 and the PTO has denied a trademark to an Asian American pop band called “The Slants.” In those cases, however, many people consider the terms offensive regardless of how they’re used.

The “invisible disabilities” case is different because it’s not the phrase that critics find offensive, but the fact a trademark was registered, said Blake Reid, a University of Colorado law professor who specializes in intellectual property and disability law.

“Invisible disability is a term people want to use because they want to increase awareness of [invisible disabilities] among the public,” Reid said. “The idea that one entity would lock the phrase down through the use of a trademark is what’s offensive.”

Voluntary Abandonment

Regardless of whether IDA’s critics can afford a formal challenge, it might be in the organization’s interests to abandon the controversial trademark to avoid alienating constituents, Rosenblatt said.

Under U.S. law, trademarks can be valid even if they’re not registered, so the organization would still be able to challenge alleged infringers, she said, though it would be more difficult to prevent other groups from using the phrase “invisible disabilities” in their name.

“It seems clear the Invisible Disabilities Association wants to advance the cause of people with invisible disabilities,” she said. “Some of those people do not think registering this trademark is a good way to go about that. If they want to serve that portion of their constituency, then they shouldn’t register this mark.”

That said, the PTO, which is notoriously overworked, is highly unlikely to cancel the “invisible disabilities” trademark based solely on the Change.org petition, said Hugh Hansen, a law professor at the Fordham University Intellectual Property Law Institute.

He speculated that if IDA critics could begin cancelation proceedings with the help of a pro bono attorney, IDA might agree to abandon the mark.

“That’s usually what happens in these situations is you go in with a pro bono attorney and they back off,” he said. “If you’re worried about your public image, that sort of thing can work.”

To contact the reporter on this story: Joseph Marks in Washington at jmarks@bna.com

To contact the editor responsible for this story: Mike Wilczek at mwilczek@bna.com

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