However, once the public associates the surname with a particular source of the product or service, the surname has acquired so-called secondary meaning. This may occur through substantially exclusive and continuous use of the surname in commerce in connection with the goods or services. In this case, the mark is said to have acquired distinctiveness and may be eligible for trademark registration.

Leaders of the protesters in lower Manhattan’s Zuccotti Park filed an application Oct. 24 to trademark the name of their movement with the U.S. Patent and Trademark Office, said Samuel Cohen, one of their attorneys.

“The filing was primarily a defensive move to make sure that no persons not affiliated with Occupy Wall Street were attempting to use the Occupy Wall Street name for improper purposes,” Cohen said Monday.

The application was filed by Victoria Sobel and Pete Dutro, two leaders of the movement who handle its finances. It requests use of the phrase in various forms of merchandise, including backpacks, luggage, clothing and headwear.

The group also wants to use the name in periodicals and newsletters and on a website that features educational materials related to the Occupy Wall Street movement.

The demonstrators have been using a silk-screening station in Zuccotti Park to print T-shirts that say “Occupy Wall Street,” Cohen said.

“Nearly all nonprofit organizations trademark their names,” Cohen said. “And the purpose is to avoid consumer confusion.”

To complicate matters, two other parties also have filed applications to trademark the phrase.

On the same date, Arizona-based Fer-Eng Investments LLC filed a similar application that covered merchandise but not newsletters or periodicals. And on Oct. 18, Robert and Diane Maresca, of West Islip, N.Y., filed to trademark the phrase “Occupy Wall St.”

Simply being the first party to submit a trademark application does not guarantee approval, said trademark attorney Daniel Kirshner, in East Brunswick, N.J. The party that can prove it was the first to use the phrase in commerce likely would have an edge, he said.

But simply printing T-shirts is not enough, he said.

“I get clients all the time that say, ‘I want to print a bunch of T-shirts and get a trademark registration,’” Kirshner said. “The patent office doesn’t think that’s a trademark. That’s decorating a shirt.”

—Copyright 2011 Associated Press

Mark that are primarily geographically descriptive may be eligible for trademark protection and trademark registration upon acquiring distinctiveness. This is the same rule of law that applies to any other descriptive trademarks. In other word, in the perception of the relevant consuming public, the mark which was once primarily geographically descriptive, has now become identified with the source of the product or service.

A different rule of law applies to trademark that are geographically deceptive. A mark is geographically deceptive if 1) the primary significance of the mark is a known geographic place or location 2) the goods or services do not originate in the geographic place in the mark 3) purchasers are likely to make the goods-place association, that is, purchasers are likely to make the assumption that the goods originate in the geographic plane or location, and 4) the misrepresentation regarding the geographic location is likely to be material in purchaser’s purchasing decisions. Marks that are geographically deceptive may not be eligible for trademark protection, and trademark registration, even with a showing of acquired distinctiveness.