May 06, 2019

The College Admissions Scandal Crosses into Trademark Territory

By now you are no doubt familiar with the current college admissions scandal. After a few weeks of celebrities and other wealthy folks being embarrassed, being criminally charged, and pleading to those charges, a trademark issue finally surfaced in the popular press. It supplements the trademark issue that is the basis for the whole affair.

The trademark issue that the press picked up concerns Olivia Jade, who, before the scandal broke, had already gained fame as a YouTube star and “influencer.” Reports indicate that Olivia Jade admitted she was not especially interested in the academic side of college but thought the “game day” and partying sounded more her style. Olivia Jade’s parents are major players in the scandal, and are alleged to have arranged for Olivia Jade and her sister to be admitted to the University of Southern California on the (false) pretense that they were recruited athletes bound for the women’s crew team. The whole affair caused great embarrassment to Olivia Jade and made her the butt of lots of jokes and the target of much schadenfreude. Meanwhile, her famous parents are facing possible time in the Big House.

A USC football game, apparently a draw for Olivia Jade.
"USC Game" by bitshaker is licensed under CC BY 2.0

In the midst of this, the media discovered a trademark story and piled on Olivia Jade. It seems that before all this broke, an application had been filed on her behalf to register the mark OLIVIA JADE BEAUTY for a variety of cosmetics, skin preparations, and the like. The list included several types of goods, connected by commas and semicolons. The Patent and Trademark Office initially refused registration in part because “applicant must correct the punctuation in the identification to clarify the individual items in the list of goods.”

This led outlets including USA Today, Fox News, and the Huffington Post to run stories saying that the application had been rejected for “poor punctuation.” After noting issues with her USC application (which she may or may not have written herself), the clever reporters gleefully reported the punctuation failures, with at least one observing that she could have used a little help with her trademark application, too. It’s easy to see why the angle was too tempting, considering the subject reportedly had commented on Twitter that it’s “so hard to try in school when you don’t care about anything you’re learning.” If you had cared a little more, you might have learned punctuation, am I right?

USC's Doheny Library, apparently less of a draw.
"12152007243" by chenjack is licensed under CC BY-NC-ND 2.0

Here’s the thing, though: there may be lots of reasons to criticize Olivia Jade, but this is not one of them.

For starters, although this particular application apparently has at least some customized language, it is very likely that the description of goods in the application (which is the part with the punctuation errors) was largely created by clicking on language pre-approved by the PTO. When you do that, the PTO website provides the punctuation itself, so any errors in that part would be the fault of the PTO rather than the applicant. My guess is that the punctuation problems arose in the integration of custom language into the language provided by the PTO.

Second, as someone who fancies himself to have a pretty decent working knowledge of the rules of acceptable English punctuation, I have found the punctuation choices required by the PTO not only not to be required by those rules, but at times to be contrary to them. Regardless, it’s a very routine matter to give the PTO the punctuation it wants and move on. There’s no call for excessive pride in the literary purity of your trademark application.

Third, and perhaps most amusing in this context, it is unlikely that Olivia Jade ever contributed any punctuation to the offending description. The application was filed by her attorney, Perry Viscounty, of the prestigious law firm Latham & Watkins. Mr. Viscounty, as it happens, has both a BA and law degree from . . . the University of Southern California. (If Mr. Viscounty was accepted as a recruit for the crew team, it is not reflected in his online resume.) You can bet the farm that he, and not Olivia Jade, prepared the application and chose the punctuation – to the extent the PTO website didn’t choose it for him.

So while I don’t think there’s any call to ridicule anybody about this very routine matter, if you’re going to ridicule someone, it should be that guy with two degrees from the very university that Olivia Jade’s parents allegedly cheated to get her into. Of course, if you want to ridicule USC, don’t let me stop you. As a guy with a degree from UCLA, I endorse that.

That takes care of the small trademark issue. In a larger sense, though, this scandal is all about trademarks, or at least branding. Someone – and from the press reports, it seems to be Olivia Jade’s mother – was intent on getting the cachet associated with USC. (Yes, yes, I assure you, I’ve already made the jokes questioning that cachet.) Kids who could have led perfectly fine lives after going to slightly less prestigious schools were given extra help in the form of a bribe here, or a fake test-taker there (all allegedly at this time), to get them into one that would make them, or probably more importantly their parents, look a little more impressive. Someone wanted to be associated with the luxury brand.

We could compare this episode to buying a fake designer purse at a flea market. The point here was not to secure a great education for the child, any more than the point of the counterfeit purse is to own an attractive purse. Instead, the point is to associate ourselves with a name that we think will be impressive to others. Maybe we would all be a little happier if we were less focused on impressing others in that way. Olivia Jade’s parents sure would be.

Unofficial mascot, the “Tommy Trojan” statue at USC.
"DSC_9634_tuned" by chenjack is licensed under CC BY-NC-ND 2.0