Equity of access to the brand called into question with a new identification requirement (2)

Small businesses, especially those run by people of color and women, will have a harder time filing trademarks when a new verification system requiring AI technology and credit verification kicks in, lawyers say .

The US Patent and Trademark Office will roll out the identity verification process on January 8. Any lawyer or company filing a trademark registration application must use it as of April 9.

The agency said identity verification would help deter fraudulent trademark filings.

Some lawyers warn, however, that the new system could prevent some entrepreneurs from registering trademarks, a requirement even for smaller businesses wishing to sell on Amazon.com’s trademark registry.

The electronic identification process includes a credit check and requires a government issued ID. It also uses an artificial intelligence facial recognition system that has been criticized for incorrectly identifying people of color and women.

Another paper verification process requires two forms of government issued ID and more time.

“The idea that everyone has a smartphone, everyone has access to the Internet, and even really a government issued ID, it highlights the conversations we’ve had about the identity documents of people. voters, that there are people who actually don’t have a driver’s license or some form of identification, ”said Thomas Williams, clinical professor of law at the Start-Up Ventures Clinic at Duke Law School. “For those of us who have it, it’s hard to believe that others don’t. But it is a problem.

Immigrants, survivors of domestic violence, people who have been incarcerated, and people who are homeless may find it difficult to meet these requirements, but need trademark registration protection to stabilize their businesses and make them successful. operate, said Williams.

Trademark commissioner David Gooder said the agency was working to make the system fair for everyone.

“The top priority of the USPTO is to ensure that all legitimate users have access to our vital patent and trademark registration system,” he said. “This means that the tools we use to protect our patent and trademark pool strive to be inclusive, fair, efficient and secure. We are committed to providing our stakeholders with accurate and transparent information about our authentication plans to address legitimate concerns. “

He added that the agency “recognizes that we all have a role to play in preventing patent and trademark fraud, and we look forward to further engaging with our stakeholders on these important issues.”

The PTO expects the electronic self-service process through ID.me to take approximately 15 minutes and states that applicants with issues with verification can complete the requirement via video conference.

The paper verification process involves providing two pieces of identification to a notary and sending notarized forms to the agency, which could take around two weeks, according to the PTO. The wait time, the need for legalization and the requirement for two forms of identification make this option less than ideal, the lawyers said.

Fraud protection

The verification process aims to ensure that those filing trademark applications are real and could be held responsible for registry misconduct or abuse, according to a PTO webinar. The enhanced warranties come at a time when trademark fraud is on the rise.

The information ID.Me collects during the process is secure, according to the agency, and the “soft” credit check is only used to verify identity and address, although the process will not work if a filer has no credit or it’s frozen.

In this case, ID.me offers other means to verify identity, said a spokesperson for the company.

Small business owners trying to register a trademark on their own will now face “wasted time in an already frustrating process,” said Erik M. Pelton, Founder and Senior Counsel for Erik M. Pelton & Associates LLP.

Pelton added that he was happy that the Trademark Office was doing more to prevent fraud, but that this process only targets “a very, very small portion of trademark scams and fraud.”

Disproportionate harm

Small business owners struggling to meet the requirements will have to bear the cost of hiring a trademark attorney or not apply for a trademark registration at all, Williams said.

“The system is already relatively complicated, very complicated probably if you are not comfortable with it,” said Williams. “It just puts more distance between the people who are in many ways the engine of our economy and the system they need to protect the thing they create.”

Credit checking could present problems for any entrepreneur who has gone bankrupt, said Julie MacDonell, co-founder and CEO of Haloo, an online brand company, adding that groups that have been discriminated against or oppression will potentially have a harder time with verification. .

“It’s a pervasive problem,” MacDonell said, “but it disproportionately harms or prevents access to certain groups who have certainly not participated equally in the economy.”

The PTO will also require that the name on the account match the government-issued identification of the registrant, posing challenges for transgender registrants who might live in states where they cannot easily change their name on their voucher. ‘identity, and women, who tend to change their names more than men, said the lawyers.

The PTO said trademark applicants can use a name other than the account name as long as it is true and meets the agency’s legal requirements.

Staff at the Patent and Trademark Office will also help applicants who use ID.me understand how it works and address their concerns, the agency said.


The system used by the facial recognition agency ID.me has, in some cases, failed to correctly identify women and people of color claiming unemployment benefits.

ID.me in a statement denied that women and people of color were misidentified.

Blake Hall, CEO and founder of ID.me, said in a Dec. 17 statement to the PTO that women and people of color “are disproportionately under-represented in data-centric solutions like credit bureaus and data brokers “.

Hall said that ID.me “is the first and only identity verification provider that provides scalable and accessible identity verification options for populations missing or under-represented in records-only solutions.” .

He added that “any perceived concerns about facial recognition and the potential negative impacts on people of color, women and / or transgender people are not supported by evidence.”

Others, however, question the use of technology.

AI technology just isn’t precise enough for this process, said Meredith Lowry, intellectual property lawyer at Wright Lindsey Jennings.

Several of the requirements – state-issued ID, credit checks, the need for a social security number – combined with potential facial recognition issues will present barriers for minority populations, groups that are The agency wanted to help gain better access, she said. .

“This is all on top of the fact that it’s just something more to do, and I’m not sure that will solve the problem the trademark office is having,” Lowry said. “What is going to stop are the small business owners.”

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