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No One Owns Invisible Disabilities

Tuesday, October 4, 2016 8:54
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The purpose of registered trademarks is to protect people. When you buy a bottle of Club-Mate, the trademark affords you some certainty that what you’re buying is the product you already know and love and not that of a sneaky impostor. But when the U.S. Patent and Trademark Office (USPTO) issues overly broad or generic trademarks, those trademarks do just the opposite: they can expose us to the risk of legal bullying. One recent round of bullying over a trademark on “invisible disabilities” has shown how a bad trademark can even be used to threaten people’s right to assemble and express themselves online.

It started in late 2015 when a group called Invisible Disability Project (IDP) applied for a trademark on its name. A lawyer representing the Invisible Disabilities Association (IDA) sent IDP a letter threatening to sue it over the use of the term “invisible disability.” (IDA had received a trademark on the term in 2013). In July 2016, IDA used Facebook’s trademark report form to have IDP’s Facebook page—the main place where IDP’s members and supporters congregate—taken down. IDA even registered the domain names and .net and directed visitors to those sites to its own website.

What’s an invisible disability? It’s any physical or mental disability that might not be immediately obvious the first time you meet someone who suffers from it. IDP’s Facebook page—which was eventually restored—provides a thorough history of the term and its usage by CUNY New York City College of Technology researcher Rebecca Shapiro. The term has appeared in books, websites, and even government documents long before 2012, when IDA applied for its trademark, or even 2010, when IDA claims to have first used it in commerce. According to IDP, the term “invisible handicap” was even used in the 1940s in reference to military personnel suffering from post-traumatic stress disorder. As the term “handicap” fell out of common usage, “invisible disability” replaced “invisible handicap.”

It’s tempting to place blame on IDA for its bullying behavior, but a big culprit is the US Patent and Trademark Office itself: the ability to bully someone based on the alleged ownership of a trademark like “invisible disabilities” would be much harder if the USPTO didn’t issue a registration for it. Anyone can claim they have trademark rights in a term, but it becomes a lot more believable when the USPTO has registered it.

That’s why it’s dangerous when the USPTO registers marks that should not be trademarks at all. From the information we have, we think that’s what happened here. The USPTO’s record for this mark (5.6 MB PDF) shows no evidence that the office seriously attempted to find uses of the term prior to 2010, when IDA claims it first coined it, or even considered whether the term being trademarked was being used in its normal, descriptive, or generic meaning. (The USPTO did require IDA to disclaim the term “disabilities” on its own, but it doesn’t appear that it considered whether “invisible disabilities” was itself merely a descriptive or even generic term).

Based on what we know of the history of the term, it appears that this trademark never should have been granted. No single organization should be able to stop others from using the term “invisible disability.” To do so would step on others’ constitutional rights. The Supreme Court has held that trademarks can’t be used to regulate anyone’s usage of generic terms, even for commercial purposes.

A few months ago, someone started a petition asking the USPTO to revoke IDA’s trademark. Hundreds of people with invisible disabilities or who support those with them have spoken out, rightly appalled that a trademark claim could be used to censor others’ use of the term. As invisible disabilities activist Michelle Gilman wrote:

Trademarking ‘invisible disabilities’ is like trademarking ‘Native American’ or ‘African American’ or ‘gay’ or ‘transgender’ or any other identity category. One organization, or one man, cannot own the identity of millions of people.

At EFF, we talk a lot about stupid patents: patents on things that aren’t inventions at all, that would be obvious to anyone with expertise in the field, or that existed long before the patents were filed. Stupid patents are a primary cause of the patent system’s ills: in the hands of a patent troll, a stupid patent can be used as a deadly weapon against innovation.

But stupid trademarks can be just as dangerous as stupid patents. Any attempt at serious USPTO reform should examine the office’s trademark review practices as well. Bad patents can threaten our right to innovate and form successful businesses. Bad trademarks can threaten something even more essential, our freedom of speech.

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