The Patent And Trademark Office Is Apparently Branching Out Into The Immigration Enforcement Business

Here's another one of those weird signs of the time. Under any normal presidential administration, this move by the US Patent and Trademark Office might look a bit strange. But only a bit. There are some legitimate reasons for doing this, but filtered through the administration's xenophobia, it seems to be just another way to hassle non-citizens. (h/t Jef Pearlman)

The U.S. Patent and Trademark Office is facing a backlash from its own staff and questions from Congress, WGBH News has learned, after it issued new instructions this month that seem to require trademark examiners to ask some applicants for proof of legal residence in the U.S. - an immigration provision that the examiners say has no role in trademark approval.

[...]

Examiners were instructed that a foreign citizen applying for a trademark who declares a U.S. address as their "domicile" must provide proof of "lawful permanent residence." The instructions note, "Foreign citizens must comply with U.S. visa immigration laws to claim the U.S. as their permanent legal residence." That language - "permanent legal residence" - generally refers to a green card.

According to the USPTO, this is being done to thwart application stuffing by Chinese applicants. There has been a massive increase in trademark applications from China over the past four years, rising from 3.1% of all applicants to over 15% of the total this year.

This is the valid reason to be double-checking the nationality of applicants, especially if the USPTO suspects China is flooding the office with fraudulent applications.

But that's not what's being checked. No one looking at the nationality. They're looking at the immigration status of the applicants. The unofficial standard being applied is green card and up. There's already a requirement that all trademark applicants must be represented by an attorney from the United States. But there's no requirement that applicants need to be citizens or green card holders to submit applications.

In fact, the USPTO says as much:

"We do not require immigration status as part of an application," USPTO Press Secretary Paul Fucito said in response to questions from WGBH News.

But that's not what examiners are saying:

Trademark examiners who work for the office say they are not so sure that is still true.

The US lawyer requirement is relatively new. It was instituted on August 3. This should help decrease the number of fraudulent applications headed towards examiners since it's unlikely a practicing attorney would willingly participate in fraud.

But if examiners are actually digging up immigration paperwork as part of the examination process, something has gone off the rails. There are plenty of visa holders that shouldn't have their applications discarded simply because they don't meet the bar of permanent resident. If this is common practice, it means someone towards the top has been convinced (or told that) foreigners are flowing into this country to take our jobs trademarks.