What America tried to trademark after 9/11

On Monday September 10, 2001, the US Patent and Trademark Office recorded 953 new trademark filings. On Tuesday it recorded 155. On Wednesday it recorded 712.

The federal trademark register is one of the few naming records that runs continuously from the 1800s to now. We loaded the full USPTO case file dataset, 11.2 million marks with their text, filing dates and outcomes, to look at what American businesses have called themselves over 150 years. This post is about a single year of it.

Filing volumes vary enormously across the register, so every rate below is expressed the same way: marks per 10,000 filed in that period. That keeps a busy month from looking like a trend.

The day itself

The drop is 84% against the day before. It is not a data artifact and it is not a weekend: the chart below covers three working weeks, and the short bars at September 8, 9, 15 and 16 are the Saturdays and Sundays.

What stands out is not only the Tuesday. It is the Wednesday. Filing returned to roughly three quarters of normal volume within twenty four hours, and to a full working day by the Monday.

Two filings on the day

Of the 155 applications recorded that Tuesday, two were about the attack.

One was WORLD TRADE CENTER, filed by a private individual in New York for services. It was abandoned four weeks later, on October 9, 2001, which is the signature of an application simply dropped rather than fought.

The other was SEPTEMBER 11, 2001, filed for books, television, radio, theatre and live performance. The applicant, Moti Shniberg, later argued the mark would not cover the events of that day. It is the only filing in this set that became case law: the Trademark Trial and Appeal Board affirmed a refusal on the ground that a consumer seeing that phrase on a book would assume it concerned the attacks. The application was abandoned on July 10, 2006, having been pending for almost five years.

Electronic serial numbers are assigned in sequence, which gives a rough sense of when in the day something arrived. Both sit in the last third of that Tuesday’s electronic filings: WORLD TRADE CENTER at number 47 of 69, and SEPTEMBER 11, 2001 at 58. Contemporary reporting puts the second filing at 5:37pm Eastern, which is close to where its position in the sequence would suggest. The register itself does not record a time, so the sequence is evidence rather than proof.

The patriotic wave

Marks containing freedom, liberty, patriot, hero, homeland or united we stand ran between 12.1 and 21.7 per 10,000 through the first eight months of 2001. In September the rate reached 34.5. In October it reached 46.3, about 3.1 times the rate of the preceding months.

The October figure is the more striking of the two because total filings had fallen. September 2001 saw 25% fewer filings than August. The rate rose while the denominator shrank.

January 2002 produced a second peak at 41.2, which is the ordinary January effect of applications drafted over the holidays arriving at once, on top of a level that had not come down.

What the marks were for

Every application names the goods or services it covers. For the 55 marks in this set, the most common class by a clear margin was clothing.

Counting the classes whose goods are physical merchandise, clothing, jewelry, candles, housewares, textiles, leather goods, toys and badges, gives 38 class entries out of the 55 marks. Some marks cover several classes at once, so these do not sum to a headcount of applications.

Four of the candle applications arrived on a single day in January 2002 from the same two applicants: variations on the same phrase filed together, the way a brand files a family of names it intends to sell under.

The register records the goods, and nothing about intent. It cannot distinguish an applicant who wanted to sell shirts from one who wanted to stop other people selling them, and this post does not try to.

The organisations

Not all of it was merchandise. Some of the largest relief efforts of that year appear here as ordinary paperwork.

THE SEPTEMBER 11TH FUND was filed twice in September 2001, by The United Way of New York City and United Way of America. The TWIN TOWERS FUND was filed in October by a not for profit set up through the City of New York. FAMILIES OF SEPTEMBER 11 was filed that November and is one of the few in this set that reached registration.

One applicant filed the same phrase, 9-11-01 LEST WE FORGET, across 10 separate classes over two weeks in October, covering printed matter, jewelry, clothing, housewares, textiles, leather goods, badges, electronics, services and financial services. All 10 were abandoned.

The broadest filing in the set came from the federal government. On September 11, 2002, the first anniversary, the Department of the Air Force filed SPIRIT OF 9-11 LET’S ROLL U.S. AIR FORCE across 13 classes at once. It was abandoned.

What happened to all of them

This is the part the register answers unusually well, because it records outcomes rather than intentions.

Of the 55 marks, 7 ever reached registration. That is 12.7%. Across all 209,162 marks filed in the same twelve months, the figure is 55.7%.

Registration was also slow. The seven took between 505 and 1,415 days from filing, so the earliest of them issued in 2003, well after public attention had moved on.

Every one was later cancelled. The last surviving registration lapsed on June 20, 2014. None of the 55 are live today, compared with 14.7% of the 209,162 marks filed in the same twelve months.

Two ordinary mechanisms explain most of that. A US registration requires proof that the mark is actually used in commerce, and an intent to use application that never ships anything lapses on its own. A registration then has to be maintained at intervals, and one nobody is trading under stops being worth the fee. Neither requires anyone to have objected.

The part that did not fade

The monthly spike is the obvious finding. The durable one only appears at annual resolution.

Through the second half of the 1990s the patriotic rate sat between 11.9 and 13.7 per 10,000 and barely moved. It reaches 28.4 in 2002 and 29.2 in 2003, then settles between 18.7 and 21.7 for the rest of the decade. It does not return to the 1990s level. The spike lasted months; the shift in baseline outlasted it by years.

One word carries this on its own. Homeland appears on at most 4 marks in any year through 2000. In 2001 it appears on 26, and in 2003 on 49.

A word that was essentially not used as a brand name became a category in about eighteen months, and stayed one.

What this data cannot tell you

Three limits worth stating plainly, because each of them is a conclusion somebody could reasonably expect this post to reach.

It cannot tell you why anyone filed. A phrase filed to commemorate something and a phrase filed to sell something are the same row, described by the same class number. The goods are recorded; the reason never is.

It cannot be compared to earlier wars. The obvious question is whether the same thing happened in 1917 or 1941, and the register is too small then for the comparison to hold. At 1917 filing volumes one additional mark moves the rate by more than 40 per 10,000, which is larger than the entire 2001 spike, and the register’s early records are sparsely dated by filing date besides. The arithmetic runs and means nothing.

It cannot measure sentiment. It measures applications, which are made by people with a lawyer and a filing fee. Everything else that happened to American naming that year happened outside this dataset.

Method

Marks counted for the 55 are those whose text contains an explicit reference to the date or to the towers. Broader phrasings were tested and rejected: ground zero is a nuclear testing idiom that predates 2001 by decades and was already registered for machinery, firearms and agricultural goods, and never forget is a common enough construction that it returns beer brands. Both registered at ordinary rates and would have pulled the 12.7% figure toward the baseline.

Patriotic terms are matched on word boundaries rather than as substrings, so hero does not count heroin and liberty does not count Libertyville. Rates are per 10,000 marks filed in the period, dated by filing date. Source is the USPTO Trademark Case Files dataset. Individual applicants are not named here, with the single exception of the applicant whose case became a published decision.

If you are naming something now, the register will tell you whether it is already taken. You can check a name against all fifty states at no cost.