“The Trademark Company” Pivots To A Copyright Company

Michael E. McCabe, Jr.Exclusion on Consent, PTO Ethics Decisions, PTO Ethics Rules, Trademark ethics0 Comments

“The Trademark Company,” whose owner Matthew Swyers agreed last month to give up his license to practice before the USPTO, ending a three-year ethics battle, appears to be alive.  While still operating under the old name, logo and URL, The Trademark Company has shifted gears away from offering trademark-related services and is now offering only copyright-related services.

According to its recently updated website, The Trademark Company provides copyright registration services, copyright opinions, and various “defense and enforcement” services relating to copyrights and domain name disputes.  Those matters are not regulated by the USPTO.  Moreover, Mr. Swyers presently remains licensed to practice law by the State Bars in Virginia and the District of Columbia.  Since he remains a licensed attorney, Mr. Swyers (assuming he is the “man” behind the business) appears to be within his rights to offer copyright legal services notwithstanding his exclusion from the USPTO.

Still, getting away from the name “The Trademark Company” may prove difficult.

For one, some legacy language remains in The Trademark Company’s website that indicates it is still providing trademark services.  Specifically, in the “About Us” section, The Trademark Company website states that “we provide the highest level of trademark services at the most affordable rates in the industry.”  Presumably, this language was overlooked when the website was revised.

A more nuanced ethics issue is with the name itself–and whether the USPTO will object to Mr. Swyers’ continuing use of “The Trademark Company” for providing non-trademark law services.  The USPTO’s and Virginia’s regulations on advertising prohibit any “false or misleading communication” about an attorney’s services.  According to the USPTO’s ethics rules (which are mirrored by the Virginia ethics rules), an attorney advertisement is “false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”

Even though Mr. Swyers does not appear to be offering trademark services (with the exception of the presumed legacy error in the website), one could see regulators licking their chops over this one.  Will the USPTO consider the continuing use of the name “The Trademark Company” for a law firm that provides only non-trademark legal services to be “materially misleading” in violation of the USPTO’s attorney advertising rules?

The End Is Near

All of this should become a moot point in due course.  As a member of the bars of the District of Columbia and the Commonwealth of Virginia, Mr. Swyers is required to self-report his exclusion from the USPTO to those other jurisdictions (and even if he does not, the USPTO will do so on its own).  Once the state regulators learn about his exclusion on consent from the USPTO, they will most likely initiate “reciprocal discipline” proceedings predicated upon the discipline imposed by the USPTO.  While that process takes time, it ordinarily does not take that much time.

The practice in most state bars is to give full faith and credit to the disciplinary decisions of other jurisdictions.  State bars treat a consent disbarment as an actual disbarment for reciprocal discipline purposes.

In Mr. Swyers’ case, the issue he will soon be facing is why he should not receive from the states discipline that is identical, or substantially similar, to the discipline imposed by the USPTO. Once the reciprocal discipline process plays out, and assuming identical reciprocal discipline is imposed, that should effectively put an end to Mr. Swyers’ law career–at least until (or if) he ever seeks to apply for reinstatement.

In the meantime, “The Trademark Company” lives on.

 

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