Thursday, 5 May 2011

US Department of Commerce slightly irritated by trade mark bullies

So it seems from its Report to Congress on Trademark Litigation TacticsThere's concern in the States, which echoes concerns here, about how trade marks are being used to bully small businesses. Trade mark bullying was first formally recognised there by Senator Patrick Leahy (D-VT), who defined it thus:
"When a corporation exaggerates the scope of its rights far beyond a reasonable interpretation in an attempt to bully a small business out of the market that is wrong."
The Senator took up the cudgels on behalf of his constituent Rock Art Brewery which faced legal action over its VERMONSTER product name from Monster Beverages, an energy drink manufacturer, alleging confusion and dilution. Monster, whose trade mark rights were apparently (and ironically) junior to those of Brooklyn Brewery, eventually backed down, in part at least as a result of a social media campaign. Senator Leahy secured the passage of a law, S. 2968, Trademark Technical and Conforming Amendment Act of 2010, which mandated the Deparetment of Commerce and the USPTO to perform a study and produce a report, due one year later, on the effect of abusive trademark litigation tactics on small businesses. In April 2011 it duly produced its Report to Congress. The report was described by Eric Goldman on the Technology & Marketing Law Blog as "worthless", a "complete whiff", "useless", and a waste of tax dollars, while David Pardue on the Trade Secrets and IP Today blog calls it a "whitewash", noting that it merely recommends:
  1. Engage the private sector about providing free or low-cost legal advice to small businesses via pro bono programs and intellectual property rights clinics;
  2. Engage the private sector about offering continuing legal education programs focused on trademark policing measures and tactics;
  3. Enhance Federal agency educational outreach programs by identifying resources that enable small businesses to further their understanding of trademark rights, enforcement measures, and available resources for protecting and enforcing trademarks. 
I have railed many times about the activities of the absolutists, and this is another manifestation of the same phenomenon. What's different is that the problem in the US involves litigation, whereas here it's the presence on the register of unfeasibly wide registrations (a result of lazy drafting encouraged by OHIM's ludicrous online application forms and ridiculous approach to class headings), fragmentary marks (a common adjective without the noun that it needs to make a trade mark), and outlandish oppositions, unhindered by any sensible use requirement, which together make trade marks as powerful as, if not more so than, copyright or even registered designs. Our own Study didn't apply quite as liberal a coat of whitewash as the one that the Department of Commerce stands accused of using, and it introduced (or at least gave currency to) the valuable notion of "clutter", but it hasn't gone to the core of the problem any more than the US equivalent.

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