Trademark Bullying

The term “trademark bully” is a hot one these days, showing up in blogs and getting its own Chilling Effects-esque website.  Perhaps its use parallels the media’s coverage of what seems to be increasingly more child-bullying examples.  A trademark bully is an entity with a trademark that asserts it in cease and desist letters, threatened lawsuits, requests for domain name transfers, and in other ways.

Just like the term “patent troll,” I hate to see the phrase “trademark bully” thrown around too easily.  Certainly, there are some entities that would easily satisfy any definition of the phrase.  They go far beyond their established trademark rights, asserting wide coverage under a likely narrower mark or field of goods and services.  The term is used appropriately for these abusers of the system.

But where confusion may lie, or at least where it could possibly be an issue, it isn’t appropriate to label someone a trademark bully.  Trademarks owners – serious ones – have a duty to patrol their marks for potentially infringing uses.  They must take action when a likelihood of confusion exists between their mark and a similar mark.  Reasonable minds will disagree on the point at which confusion becomes likely; if not for disagreement, we wouldn’t have litigation over the issue.  And, arguably, a penumbra extends beyond that point in which a trademark owner may legitimately be concerned about its rights but perhaps, in actuality, there has been overreaching.  Labeling that owner as a trademark bully is extreme; the term should be used with moderation and care.

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