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Jeremy with somebody else's dog.

 

Jeremy Peter Green Eche is a branding attorney and the founder of JPG Legal and Communer. He is the attorney of record for over 2,500 U.S. trademark registrations. In 2019, JPG Legal was ranked the #16 law firm in the United States by number of federal trademark applications filed. Eche graduated from Northwestern University School of Law on a full scholarship. Thomson Reuters selected him as a Super Lawyers Rising Star in Intellectual Property for 2021.

 

Eche has been profiled on USA Today, CNBC, CNN Money, NPR's Morning Edition, WIRED, MSNBC, Forbes, the New York Daily News, HLN, CNN Politics, DCist, ABA Journal, Vox.com, CNET, Mic.com, NBC News, Refinery29, the Globe and Mail, and several other news sources. Before becoming a trademark attorney, he was known for owning ClintonKaine.com and hosting his comics there during the 2016 election, before selling the domain.

 

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Eche is based in Brooklyn in New York City. He formerly served as in-house General Counsel for Teamsters Local 922 in Washington, DC. He is married to Stephanie Eche, an artist and creative consultant.

 

You can contact him at info@jpglegal.com.

USPTO ID.me Verification for Trademark Filings: What Is This?


ID.me surveillance camera cartoon

If you’ve tried to submit any trademark filings in the US after August 6, you might have been surprised to see that the USPTO now requires you to get your identification verified by something called ID.me. You may have wondered, “What is this? Do I really have to do this? How much work is this going to be?”

Here are my answers to these questions, along with some context.

What Is ID.me and What Does It Have to Do with Trademarks?

ID.me is a private company that offers identity verification services and has contracts with various government agencies including the IRS and several state unemployment offices. 

Citing its own unproven estimate that hundreds of millions of dollars are lost each year due to unemployment fraud, ID.me convinced dozens of state unemployment agencies to hire it to screen applicants for unemployment insurance. 

Recently, some states as well as the IRS have rolled back their ID.me requirements after backlash over ID.me’s problems with storage of private personal data, rejection of legitimate unemployment applicants, and poor customer support. Even members of Congress have gotten involved in investigating ID.me’s practices and security lapses, some of them strongly encouraging states to abandon ID.me altogether.

Why Is the USPTO Using ID.me?

It’s interesting that as other government organizations have started to distance themselves from ID.me, the USPTO has just started to require its users to sign up for the service.

Still, I understand where they’re coming from. For the past few years, the USPTO has been flooded with fraudulent trademark applications filed by individuals and entities based in China (mostly around Guangdong, the province of major export hub cities Shenzhen and Guangzhou). 

The number of applications at the USPTO increased so much a couple of years ago that it overwhelmed their contingent of trademark examiners and created a massive backlog of applications. This increased the USPTO’s initial processing time for new trademark applications from about 3.5 months to over eight months on average.

Perhaps even worse than these fraudulent Chinese filings are the Pakistan-based scam services that trick unsuspecting trademark applicants into hiring them to file trademark applications in the US. These scam services overcharge their clients, falsify specimens to save time, and even send their clients fake USPTO documents and registration certificates. The US government recently broke up a massive ring of fraudulent filing services. Unfortunately for the scam victims, all of their pending applications filed with these services seem to have been invalidated by the USPTO. 

New filing services that seem nearly identical to these old fraudsters have already popped up and are running Google Ads for the same keywords targeted by law firms like mine.

USPTO feeling the heat

Between the long processing times and the policy implications of allowing tens of thousands of fraudulent applications to reach registration, the USPTO is highly motivated to cut down on fraudulent filings. Trademark attorneys in particular have been very vocal about the need for the USPTO to institute more serious measures against fraud.

The USPTO already tried to crack down on these fraudulent filings by requiring foreign applicants and registrants to be represented by US-licensed attorneys on any trademark matters. An unrepresented applicant must be physically domiciled in the US, so this rule applies even to foreign-based individuals who form business entities in US states.

This was a huge policy change that caused great expense for a large number of US trademark owners based in foreign countries. It was partially successful, but it was not enough to stop the massive flood of Chinese applications, which actually got much worse in the following years.

The USPTO also started requiring US-licensed attorneys to include their state bar numbers on applications, presumably to make it more difficult for fraudsters to impersonate US-licensed practitioners. I’m not sure what, if any, effect this had on fraud. As a New-York-licensed attorney, anybody can look up my bar number by using my state bar’s search engine.

What makes a trademark application “fraudulent?”

The filers of these fraudulent trademark applications are committing fraud in a number of ways. Here are some of the most common offenses:

  • Forming a US business entity to hide the fact that they’re based in China or another foreign country, in order to get around the attorney requirement for applicants not physically based in the US.
  • Falsely claiming to be using their trademark in commerce in the US and submitting a fraudulent specimen.
  • Paying a US-licensed attorney to allow the applicant to either forge the attorney’s signature or prepare the application for the attorney to file without review. The going rate for this seems to be around $30-$50 per application. For an attorney who lets a Shenzhen-based company file 5,000 applications under their name in a year, this is a good chunk of money. Fortunately, the USPTO has started sanctioning some of the most egregious offenders, usually suspending them from legal practice.
  • Pretending to be a real US-licensed attorney and forging their signature without the attorney’s knowledge (identity theft).
  • In the case of scam filing services, misrepresenting the status of filings to the applicant, and misrepresenting the intent of the applicant to the USPTO. 

The cumbersome new requirement for anybody filing anything trademark-related to sign up for ID.me will probably cut down tremendously on some of the above practices. 

It will certainly be much harder to steal an attorney’s identity, pretend to have a physical presence in the United States, or provide unlicensed legal filing services for an applicant.

Details of the New ID.me Verification Requirement

All attorneys and all trademark applicants or registrants not represented by an attorney will be required to get their identity verified by ID.me. 

This generally involves submitting your social security number, an image of your government ID, and a “selfie” to ID.me, which is a private organization and not a government entity. ID.me will then approve your application without major issue within a day if you’re lucky.

The USPTO also offers an alternative method of verifying your identity by mail that eliminates the requirement to send your social security number to a private company. However, it seems that this alternative process can take a month or more to complete and requires notarization.

Additionally, if there are any complications with the AI-based identity verification system, then you’ll need to get in contact with ID.me’s famously understaffed customer support.

Is There Any Exception to the ID.me Requirement? Can I Skip It?

Unfortunately for applicants and registrants, there’s no way to get around the new ID verification requirement. If you want to file an application, respond to an office action, renew your trademark, or submit pretty much any other sort of filing with the USPTO, you’ll need to go through the identity verification process.

The only “loophole” around this is hiring a US-licensed attorney to submit these filings on your behalf. And this is only true if the attorney themself has gone through the ID.me verification process. 

This means that even if you already have a small business attorney, they may not be able to file a trademark application or renewal on your behalf. Many attorneys likely won’t bother to go through the verification process unless trademark or patent law is one of their major practice areas.

One thing I’m interested in seeing is how this will affect “legitimate” (but still unlicensed) self-filing services: the ones that advertise $49-$149 trademark filings without the use of an attorney. Based on my understanding of the new requirements, I don’t see how a service like Trademark Engine or LegalZoom will be able to file a trademark application on somebody’s behalf, considering that non-lawyers aren’t allowed to submit trademark filings on behalf of others.

How can Trademark Engine file a trademark on somebody’s behalf if the applicant hasn’t gone through ID.me verification? The Trademark Engine employee will have to log in to the USPTO using their own ID.me verification and either submit the application themself (thus practicing law without a license) or send the applicant a prepared template file to upload to the USPTO (meaning the applicant has to sign up for ID.me). 

Given this information, I’m surprised to see that Trademark Engine is still running Google Ads for keywords like “file a US trademark.” How are they getting around the verification requirement? I’ll try to find out soon.

At my own firm, all four attorneys signed up for ID.me and our experiences varied. 

The form we had to fill out contained misleading information about what to do if the name they had on file did not match the name on your ID exactly. I believe my name was missing a space between my first and middle names in their form, so I checked a box saying the names didn’t match. 

This led me to another page that indicated that I was mistaken in checking that box. Unfortunately, I couldn’t go back and uncheck the box. I had to restart the whole process, including uploading my ID photo and taking a selfie through their interface. It was very irritating. 

Aside from that, three out of four of us were able to get verified in a very short time without much issue.

Unfortunately, one of my associate attorneys had multiple issues with their application. The forms wouldn’t accept their photos or their phone number and they ended up having to get on a video call with an ID.me employee to resolve things. So there does seem to be a good chance that something will go seriously wrong when you try to apply for ID.me verification.

Is ID.me Worth the Hassle for Trademark Applicants and Registrants?

I think for many business owners, this is going to be the final straw that causes them to give up on their goal of self-filing a trademark application, leading them to hire a licensed attorney. If you’re looking for an affordable trademark law firm, I know a good one!


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