The world of business and intellectual property can be a strange one to navigate. Just like there can be a subtle distinction between what qualifies as innocent joking and workplace harassment, so too can there be a thin line between competently protecting your brand and being an aggressive trademark bully, according to Orange County trademark attorneys.
It’s not exactly the moniker you want to be stuck with, even if they’re just allegations, so here’s a look at the finer points to help you distinguish between what is (and what is not) trademark bullying.
Defining The Trademark Bully
If we’re going by the letter, then we need to look at the United States Patent and Trademark Office’s definition, delivered in this report to Congress on trademark litigation tactics.
They define trademark bullying (and trademark trolling) as a way of throwing one’s weight around, when a “trademark owner that uses its trademark rights to harass and intimidate another business beyond what the law might be reasonably interpreted to allow.” If this sounds akin to the similarly-named patent bullies and trolls, you’ll want to note the comparison is not accidental.
Much like the patent troll, the trademark bully seeks to abuse the system, vexing their target with egregious and outrageous demands, and often attempting to force their targets into situations where they might sue them to force a settlement and earn some money in the process. You might look at it like a well-oiled machine of harassment, one which trademark bullies wield like a cudgel to force others into submission.
Simply Enforcing Trademarks Is Not Bullying
Confusion can come into play when discussing trademark bullying because some observers are prone to interpreting the issue as a “big guy” v. “little guy” situation. This is not the case, mind you, and the smaller party in a trademark dispute is not automatically a victim. Companies don’t just have a right to reasonably enforce their trademarks — they have an obligation to.
If a larger company has a legitimate claim against a smaller one that is infringing upon its mark, they generally have to enforce their trademark in order to protect it. It’s a way of preserving their brand, and it’s of vital importance to ensuring their business reputation carries on.
This is, assuming that they can show where harm is posed to the brand by the trademark infringement. It’s important to note that situations where artistic use and similar concepts apply, attempting to enforce a trademark is overreaching, and may well fall back into the territory of bullying.