We at Brightleaf spend a lot of time helping law firms market and deliver their legal services to their clients the right way. Maybe that’s why we get vexed when we encounter legal service providers who market the wrong way. In legal services marketing, “the wrong way” usually just means bland or indistinct or not timely. Sometimes though, it instead means sleazy and deceptive and likely illegal.
Here’s a perfect example of a perfectly crappy way to sell what purport to be legal services.
So what’s the problem? Despite appearances, this is not a notice from a government agency, nor is it an invoice for any service purchased, nor is it even a solicitation for a services that solves the things it warns you about. It just tries really hard to look like all of the above.
Quick background: When you file for trademark protection with the U.S. Patent and Trademark Office, your application gets posted online in a searchable database so everyone else has notice that you are using or are intending to use your trademark. That’s great. Owners of competing marks get notice of possible interference and can object to your use before you go too far down the road with your mark. Subsequent filers get notice that you got their first with your application, and know to move on.
And, unfortunately, “companies” like the US Trademark Registration Office get the ability to send you what seem to be bills from the actual USPTO.
Check out the highlights above. This certainly looks like an invoice, huh? Lists an amount ($375) that’s exactly the same as the standard trademark registration fee. Says “DUE NOW” in all caps. Contains vaguely threatening references, in bold underlined text, to the United States Patent & Trademark Office and the Office of Homeland Security. Warns you about all sorts of bad outcomes that might happen to your trademark if you don’t subscribe to their service. Conveniently omits that the service they want you to subscribe to DOESN’T ACTUALLY PREVENT THESE OUTCOMES (Instead, it just promises to notify you about the scary outcomes again in the future). Asks you to detach the payment stub and attach it to your check.
Worse…this doesn’t just look like an invoice. It looks like an invoice from a government agency with whom you had recently filed something. Because if you had recently applied with the USPTO for a trademark registration, it would be hard imagine a name closer to “United States Patent and Trademark Office” than “United States Trademark Registration Office.” The fact that they don’t give you a phone number to call or a website to visit…and the fact that their seemingly prestigious address in a downtown LA bank tower is really a rent-a-desk virtual office in a downtown LA bank tower, and the fact that the “company” doesn’t show up on an entity search at the California Secretary of State, all seem pretty damning evidence that these people are way more interested in tricking you into buying a service you don’t want to buy than they are in providing you with a service that’s manifestly valuable enough to buy.
Undeniably sleazy. But is it illegal?
Probably. But barely. Buried in the body of the letter you can find the “this is not a bill” disclaimer prescribed 39 U.S.C. 3001(d) (requiring mailed materials that look like invoices, but aren’t, to alert the reader conspicuously that they are in fact not invoices). Just below that, you can find the “we are not a government agency” disclaimer required in 30 U.S.C. 3001(h). I’d argue that while both notices appear in ALL CAPS font, they lose the right to claim the statutory requirement of conspicuousness because so much of the text in this document is in ALL CAPS, bold, italic, or underlined text that there’s almost nothing conspicuous about the disclaimer. Fortunately, I don’t have to.
That’s because they omitted one last requirement for mailings like this. Besides the two “conspicuous” notices above, a bit further down chapter 3001 we find the subection (i)(2) requirement that for any mailing that could reasonably be construed as coming from a government agency (and I think we can all agree that this one satisifes that threshold)…
“…the envelope or outside cover or wrapper in which such matter is mailed bears on its face in capital letters and in conspicuous and legible type, in accordance with regulations which the Postal Service shall prescribe, the following notice: “THIS IS NOT A GOVERNMENT DOCUMENT.”, or a notice to the same effect in words which the Postal Service may prescribe; and…”
There is no such notice on this envelope. So, not just sleazy. Likely illegal.