Opportunism in the COVID-19 Age by Jeromye V. Sartain

Clearly we are living in a strange time – the word “unprecedented” has been used to the point of overuse, but it really does fit.

Long after the coronavirus has had its way and wreaked havoc on people’s health and health care systems the world over, we will still be reeling from the global economic impact this microscopic virus will have ushered in.  For all, things are and will be “unbelievable,” and for most that will be in a bad way.  But for some, things may even be unbelievably good in our post-COVID-19 world ….

E-commerce is realizing new opportunities and reaching new heights in part as a result of this pandemic.  Amazon certainly will not be hurting – we have all grown quite accustomed to buying on Amazon, and as we all “hole up” in our self- or government-imposed quarantines, our dependence on such services will only increase indefinitely.  Businesses of all kinds that provide on-line services are thriving as well, from Zoom, GoToMeeting, and other such “virtual meeting” services to entertainment streaming services.  More and more remote or virtual “classroom” technologies have been implemented for distance learning, which applies in education and all kinds of industry contexts and will only continue with our secondary and post-secondary education systems going on-line for the rest of the school year.

It is nice to see many companies demonstrating care for their customers and communities at this time by offering free services, waiving fees or deferring payments, etc. – whether or not altruistically, these businesses are opportunistically storing up “good will” credits for years to come.

In the intellectual property space in which I operate, we see similar opportunism and accommodations happening across a variety of nations and agencies, from Departments of Health expediting procedures and approvals related to COVID-19 test kits and medications or vaccines to Patent Offices accelerating patent filings on related solutions and even legislative response or ruminations regarding patent-eligibility for such medical diagnostic and treatment technologies.

Anecdotally, in the trademark arena, in a little over a month, or since February 4th, in the USPTO alone thirty-four “novel” applications have been filed containing the terms “COVID” or “CORONAVIRUS” – there was only one unrelated COVID registration previously.  These new trademark filings by opportunistic applicants seeking to capitalize on this unforgettable global pandemic range from COVID-19 SURVIVOR and WE CURED COVID-19 to CORONAVIRUS SURVIVAL GUIDE and CORONAVIRUS TAX AMNESTY PROGRAM.  Most such marks are applied for by individuals in connection with T-shirts and other novelty items, but a few are more serious brands for more serious products and services.

Taking advantage of recent cases involving the “immoral or scandalous” trademark statutory prohibition, which in the 2019 Iancu v. Brunetti Supreme Court case was struck down as an unconstitutional abridgement of the First Amendment, an individual in Milwaukee just applied on March 16th for the marks FXCK COVID-19 and FXCK CORONAVIRUS, again for T-shirts and hats.  These brands may express the sentiment of a great many Americans and so may ultimately gain wide acceptance when all is said and done.

For now, we all wait with bated breath for the coronavirus to run its course and to then see whether or how quickly the economy can pull out of what appears to be an impending global recession.  Whatever your business or line of work, be ready for just about anything and to find opportunities to help your neighbor – together we’ll get through this, personally and professionally.

If you have any related legal questions or concerns or have ideas about how to operate your business effectively and perhaps uniquely in the post-coronavirus “new normal,” please let us know – we are at your service.

Post authored by Jeromye V. Sartain