There’s a lot of talk in the news these days about bullying and what can be done about it. Despite all this talk about bullying in school or bullying in the workplace, you might not have heard much about the trademark bully, unless you have encountered one.
If you haven’t encountered a trademark bully yourself, it might be helpful to know how to spot one. The US Patent and Trademark Office (USPTO) describes a trademark bully as a trademark owner who uses his or her rights under trademark law to give other businesses a difficult time. The bully might take trademark law interpretation a little further than what it was originally intended to do.
The USPTO recently conducted a trademark bullying inquiry because there is language in the Trademark and Technical Conforming Amendment of 2010 that says the Secretary of Commerce should tell Congress if small businesses could be hurt by trademark owners litigating beyond what the scope of trademark law should reasonably allow.
What is reasonable can be difficult to decide, however, because a plaintiff and defendant will not often agree on the definition of reasonable. One of the things that must be questioned is which side chooses what is reasonable, and if someone is guilty of trademark bullying, what are the consequences.
When it comes to trademark disputes, everyone involved in the case may feel as though they are being reasonable. Those making decisions in the case have to take a lot of factors into account, such as whether there can be confusion surrounding the trademark, how well known the trademark is, how likely it is that other entrants in the market can dilute the trademark, and whether the person interpreted to be infringing on trademark law is doing so in bad faith. None of these questions are easy to answer. Further complicating the issue is the fact that trademark rights do not always stay the same. Instead, over time, they can change.
If the standard of determining whether someone is a trademark bully is based on what can be considered reasonable, these will be difficult cases to decide. Perhaps instead, the definition of a trademark bully should be someone who acts aggressively over and over in a deliberate attempt to hurt another person or gain power over him or her.
In the case of trademark fraud, liability can be triggered by many things, however, gross negligence or unreasonable legal positions might not be in that list of triggers. For intent to be proven, a higher level of fault must exist.
Luckily, trademark bullies are rare, so the trademark system likely does not need a complete overhaul in order to be able to deal with their rare emergence. In case a true trademark bully does rise to the surface, there are a few legal tools in existence that can help. For example, there is one that brings bad faith, baseless litigation or frivolous litigation. People should also keep in mind that in trademark cases like these, money has been awarded in federal district court cases. There is one that even had more than two million dollars change hands.
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This is a guest post. Loren Stacks contributes across the web on business, social marketing and trademark related issues. He is the day to day webmaster of SecureYourTrademark, a site dedicated to trademark search and security.