By Ben Langlotz
Remember when Newsweek used to be important? Well, it became important again to me last month. I had spent a family day on a Sunday with the phone off, full attention on the kids. Late in the afternoon, I turned the phone on and saw a Google Alert email. I have it set to search for anything in the news with “firearms patent.” This was more interesting than the usual stuff.
Newsweek had written an article about me and about what I wrote last month (I saw an anti-gun activist announce his business brand plans for a leftist pillow company, before he filed to protect his brand). My newsletters are published on by website blog and I had tweeted about it.
The folks I embarrassed with my pillow trademark activity apparently had a pipeline to top media reporters. The Newsweek reporter had emailed me in the morning (again, phone off) asking for comments. Before I had a chance to respond, here’s what I found online. It started like this:
A Donald Trump-supporting attorney announced he filed a trademark for Good Pillow before gun control activist David Hogg—and suggested it is “a good brand to put on pillows with a pro-gun civil rights message.”
Firearms patent and trademark attorney Ben Langlotz revealed he had “scooped” Hogg in an April 5 post on his website titled “how I taught a Harvard Boy a lesson about trademarks.”
He said: “I was surfing Twitter one evening in February when I ran across a story about David Hogg’s new scheme.”
The scheme Langlotz referred to was Hogg’s February 9 announcement on Twitter that his and co-founder William LeGate’s planned company name would be Good Pillow.
Langlotz said it had given him “a wonderful, awful idea.”
“Could this political attention-hogg have made the ultimate product announcement blunder?” he wrote.
“I’ve seen it countless times: the new product is announced, but the company didn’t apply first to register the trademark.
“I quickly clicked over to the U.S. Patent and Trademark Office website and searched Good Pillow: Nothing filed.”
Langlotz said he filed the request in order to “undermine his (Hogg) nefarious leftist plans” or to “own the libs,” and that he intends to offer pillows under the brand name.
Now hold on a minute. Right there, before you and me, is the proof that the mainstream news media is the enemy of the people. The one most important fact in the story, the one thing that will determine the actual real-world outcome of this potential legal dispute, they got wrong.
Not just wrong, but EXACTLY BACKWARDS FROM THE TRUTH. And not just backwards, but wrong in the way that makes the conservative party (me) look like an idiot and an incompetent lawyer.
Notice that I didn’t say that I filed it to vex or irritate Hogg. Nor to undermine his nefarious leftist plans, nor to protect an honorable conservative businessman in Mike Lindell. I didn’t do it to “own the libs”…. I didn’t even do it to have a good story to write about in my newsletter – at least not primarily.
I did it because I really, genuinely, and authentically intended – at the moment of clicking under oath – that I truly intended to offer pillows under the Good Pillow brand name.
Think about that. In the Newsweek article, most of the above content are my own written words that they copied and pasted from my blog into their article. That’s fine, but they managed to copy-and-paste one key error by turning MY MAIN POINT on its head.
The whole point of the article (and a side benefit of the whole kerfuffle) was to help educate my readers about the importance of filing trademarks before you announce them, and having a true intention to use the trademark is critical.
And for that and the chance to reiterate the point, I suppose I should thank Newsweek.
No Such Thing as Bad Publicity?
If I had written what they said I did, I’d look like something other than an experienced and capable trademark attorney. So I sent a quick email to Newsweek:
I see that your article made a critical error in reporting my published account.
My article very carefully and deliberately makes a point about my intentions, which are the core of this whole legal matter.
Your article got the critical legal point wrong, when it wrote: “Langlotz said he filed the request in order to “undermine his (Hogg) nefarious leftist plans” or to “own the libs,””.
The error creates a false impression of professional incompetence and a lack of knowledge about the legal requirements for Intent-to-Use filing, which is extremely damaging to my professional reputation after 31 years specializing in the field. This would seem to call for a correction and public retraction that clarifies that the error was the result of an inaccurate account of my published newsletter that clearly stated the opposite of what the first version of the Newsweek article initially reported.
And within hours, Newsweek corrected the error, and added:
Correction: This article originally stated that Langlotz filed the request in order to “undermine his (Hogg) nefarious leftist plans” and “own the libs.” Langlotz’s website post states that he filed the request not to undermine Hogg or to score political points. Newsweek regrets the error.
Which shows that they’ll push as hard as they can get away with it, but will back off when they have to.
Look very carefully at what Newsweek wrote (the reporter is in the UK, oddly covering politics of US gun-issue activists):
Langlotz has previously tweeted favorably about Trump, writing on Twitter in January that “Trump was the first thing the GOP did well in my lifetime,” and called the former president a “True American hero,” in March.
You see what they did there? Does it smell like they tried to “cancel” me. They raised my past support for President Trump, which has nothing to do with the issue. They even put it in the headline that begins “Trump-supporting attorney….”
Now, I’m as proud as can be to have supported Trump since the beginning (OK, I voted for Ted Cruz in the 2016 primary) and still contend that Trump is by far the best President of my lifetime. It would be a dream come true if I somehow ended up a “Trump attorney” as the Newsweek article web code put it: “https://www.newsweek.com/trump-attorney-trademarked-good-pillow-before-david-hogg-william-legate-1582718”.
But I believe they really thought they had the big “gotcha” over me by inserting this presumably discrediting or embarrassing factoid in the article. Which makes me wonder whether these 20-something geniuses who drive the media narrative really have a clue.
I mean, they’re quoting from my own publication. From my own published marketing material I employ to gain clients. Can they really believe that this would hurt me to promote my promotional material?
Recounting this tale to another conservative lawyer friend, he remarked: “Ben, you’re uncancellable!” He said I probably had a more politically conservative “book” (my client base) than any other lawyer or law firm in the nation.
I wonder if that might actually be right. I’ve spent decades openly speaking my mind about guns, the law, and liberty, indifferent to those I might offend and delighted to welcome those it attracts. I’ve had thousands of private conversations in our own industry “bubble” over the decades that have shown me that our principles of liberty and conservative politics will never divide us.
A number of enterprising folks looked me up and used my law firm web page inquiry address to send me some love notes. None were clever or clean enough to repeat here.
But one was a young trademark lawyer from LA who took the time to start a conversation:
As you likely know, trademarks in the US are based on use, not filing. And, per Prof. Beebe, bad faith correlates with a 97% likelihood that infringement will be found. Good job creating evidence against yourself on Twitter. It’s proof for the Dunning Krueger effect, I guess.
I was impressed at how he got two obscure look-it-up references in three sentences to make one point. He assumed I did a “self-own” because he believed Newsweek. A good example of what defamation law is all about.
So I wrote back that “that the fake news got it exactly 100% wrong about my intentions.” And being a sharp young buck whose righteous message was based on a falsehood, he kept fighting, looking for something he could win (I get these guys on the other side of disputes, and have ways to handle them).
He then got long-winded, quoting statutes and telling me how my enjoying the side benefit of irritating a twit meant that a judge would rule that I had no intent to start a pillow company (or to arrange for Café Press to sell pillows branded my way). Possibly. There are plenty of politically corrupt judges who will rule against the law in a way that pleases the left.
But my young LA colleague wrote:
“there is also history of precedent finding priority based on activity analogous to use in commerce (i.e., “analogous use” cases), including activities in preparation for doing business under a particular mark.
I’m open to learning new things, but I’m pretty confident that blabbing on free social media that one plans to use a brand name is not “trademark use” under the law. The core principle is that the first user wins the rights, and filing Intent-to-Use gives effective use nationwide.
But our woke millennial lawyer wasn’t content to just ‘splain me the law.
You seem like a smart guy, Ben. You clearly have a knack for branding, as I’m sure this publicity and your pro-gun message create a steady stream of business. That said, I suspect you may have lost direction along the way, as you are now trying to game the trademark system—and doing so poorly—in order to teach a 21-year-old survivor of a school shooting a lesson. I believe you are better than that, Ben, but I guess you should do what you think is best.
Aw shucks. But poor me, having “lost direction.” I suppose advocating for individual liberties and the Second Amendment is evidence of a lost soul to the hipster lawyers of LA, and the law partners they hope to impress.
I wonder if in his mind, gaming the system poorly is better than gaming it well? My advice to clients is to know the law and make the best decision for your business based on that.
But the “tell” that he knows he has lost is when he pulled out his “human shield” in the form of his “designated survivor” victim he purports to protect. At least he didn’t call him a child.
My response is that if you’re attacking my liberties, you’re my adversary at best and I’m not going to pull punches, even if you were anointed by your side precisely for your presumed untouchability (the same goes for you, Greta). These “Tiny Toon activists” are empowered as mouthpieces for the most powerful forces in society, and if their feeling are hurt (by having to pick a different trademark?) then the responsibility is with those who exploit them, not those who defend their liberty against them.
The 1968 Gun Control Act gave the ATF authority to regulate federally licensed gun dealers. In 1978, the ATF tried to make dealers report most sales each quarter. The NRA and other groups denounced the plan, and lobbied to kill the reporting requirement https://t.co/UEJaQ8Gf8z
— David Hogg (@davidhogg111) July 8, 2018
By the way, Hogg has since abandoned his dreams of becoming a progressive pillow-making mogul.
Still Intend to Use?
So, now that most of this has blown over, the Good Pillow folks have apparently moved on, and I’ve had subject matter to share for two consecutive months, people ask: “So Ben, are you still going to make pillows?”
It’s a good question. Legally, all that matters is whether my intent was genuine upon filing the application, as a swore under oath, and have always contended. But Intent-to-Use trademark applicants don’t need to maintain a fierce intention until use begins. One very common approach is to file Intent-to-Use with the mindset that “I’ll use it if the trademark examiner approves it.” So I’ll wait and see, and report as my application progresses.
I used that strategy for my “side hustle” hex key set invention, with metric and fractional keys intermixed, arranged by size. I applied Intent-to-Use for both Hybrid and Integrated, and picked Hybrid because it was the successful legal option. MUCH more next month on that patent and trademark project that continues to help me appreciate what my clients go through.
Ben Langlotz is the nation’s leading firearms patent and trademark attorney, and the author of Bulletproof Firearms Business: The Legal Guide to Success Under Fire. He is trusted by more firearms industry companies than any other lawyer or law firm in the nation, and is consistently ranked at the top of all attorneys in securing gun patents and gun trademarks. He’s also the inventor of the InchMetric Hybrid Hex Key Tool.
This article originally appeared at gunpatent.com and is reprinted here with permission.