Lawyer Calls Trademark Office Out as ‘Kafkaesque’

     ALEXANDRIA, Va. (CN) – Unhappy with the extra work he made for them, trademark regulators are trying to put an enterprising attorney out of practice, he claims in a federal complaint.
     Since founding his business, the Trademark Co., in 2003, Matthew Swyers notes that has filed roughly 15,000 trademark applications with the U.S. Patent and Trademark Office on behalf of his clients.
     Such applications create “a significant case load for the USPTO examiners,” and they have been firing back in kind, with more paperwork, a complaint Swyers filed last week states.
     Swyers says the retaliation began with the USPTO’s Office of Enrollment and Discipline launching an investigation of him in August 2014.
     In the year and a half since, the office has allegedly deluged Swyers with RFIs, abbreviated in the complaint alternatively as requests or requirements for information.
     Swyers says the RFIs are “designed to harass, overburden, invade, injure and damage” him.
     Though the RFIs are overbroad, oppressive and sometimes clawing at protected attorney-client material, Swyers lacks any means to challenge the requests and is left open to sanctions if he does not answer them, according to the 20-page complaint.
     “Despite the expenditure of hundreds of thousands of dollars in legal fees and untold lost hours spent by Swyers himself to answer them,” Swyers says no RPI is ever “answered to the OED’s satisfaction.”
     The result is Sisyphean.
     Each failure “to address the OED’s endless list of asserted deficiencies and demands for legal analysis [] becomes the basis for an additional ‘failure to cooperate’ charge against Swyers, meaning that not only is there no way to challenge abusive, overreaching, or privilege-invading requests, but the requests are accompanied by a threat that anything but acquiescence could result in a loss of the right to continue in business, with no avenue to seek protection from their use as a bludgeon against Swyers, his employees, and his clients,” the complaint states.
     Swyers notes that violating the agency’s rules of professional conduct carries the possibility of suspension or disbarment.
     Though the OED broadened its inquiry into virtually every trademark matter that Swyers ever handled, the attorney notes that he has faced zero “client complaints, allegations of unethical behavior or violation of USPTO rules.”
     OED investigators meanwhile have been asking his clients to contact them “confidentially,” according to the complaint.
     Swyers says these letters to clients imply that the applications Swyers filed include fraudulent statements that could serve as grounds for canceling their trademarks.
     The letters fail, however, to inform clients that answering the office’s inquiry effectively waives attorney-client privilege, the complaint alleges.
     “An attorney should not be compelled to subject himself to disciplinary charges, and the adverse consequences that may flow there from, in order to protect his client’s confidences or to challenge unduly burdensome discovery,” the complaint says.
     Swyers says the OED keeps coming after him, with ever-growing demands and shrinking windows for him to answer.
     “Regardless of how many times and in how many ways Swyers responds, he is told by the OED that his responses are insufficient and that he faces prompt adverse consequences,” the complaint states.
     A year and a half has passed but Swyers says he “has still not been apprised in any meaningful way of what it is that he is supposed to have done wrong.”
     “In a manner truly Kafkaesque,” the investigators make only vague references to the violation of its 45 professional-conduct rules “as being the potential basis for a determination of violations,” the complaint states.
     Swyers says the “unbridled oppressive use” of requests for information, “without any means whatsoever to challenge them, transforms an ethics investigation into a strike suit.”
     “The routinely abusive nature of the requests, the denial of any avenue for challenge, and the threats of disciplinary action for non-compliance, are hallmarks of a system lacking those procedural safeguards to which Swyers, or anyone, is entitled to under the constitution,” the complaint says.
     Swyers is represented by Danny Howell with Sands Anderson in McLean, Va. The attorney did not return an email seeking comment Friday afternoon.
     A spokesperson for the U.S. Patent and Trademark Office also did not return a voicemail left late Friday afternoon seeking comment on the suit.
     Media reports show that Swyers has helped college athletes Ezekiel Elliott trademark nicknames like “Zeke” and “Hero in a half shirt,” alluding to the Ohio State football player’s preference of rolling his jersey up like a crop top.
     Swyers notes on his company’s website that he began his business after working himself as a USPTO trademark-examining attorney, a job in which he “routinely witnessed individuals and small to medium-sized businesses in need of legal assistance but without the ability to afford traditional law firm rates.”

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