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Burberry Resorts To Trademark Extortion For Revenue Enhancement

A Tabberone Exclusive! February 2, 2009 Hartsel, Colo -

According a letter received by Tabberone, it appears that the downturn in the economy has prompted the global luxury brand company Burberry to use trademark extortion tactics in an effort to compensate for lagging revenue figures. These extortion tactics appear to be aimed at "Work At Home Mom" ("WAHM") sector and other small internet businesses who are more vulnerable to trademark extortion than larger companies with legal staff on retainer. Burberry's Associate Counsel, Melissa Roth, has sent demand letters to alleged infringers not only insisting that they cease and desist but demanding a monetary settlement or the case may be prosecuted in court. It is possible that these WAHMs and small businesses are being targeted as a revenue source because they are unlikely purchasers of the luxury products sold by Burberry and therefore Burberry would not be alienating any present or future customers. Extortion (Black's Law Dictionary - 6th Edition) is defined as: "The obtaining of property from another induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." "Extortion" is basically defined as the "unlawful exaction of money or property through intimidation". In our opinion, the threat of court action combined with overly broad legal assertions and factually misstated claims of greater potential harm, constitute extortion demands. The claims are often exaggerated and clinically proven to be very unlikely which would support the "unlawful" requirement of the definition. The demand letter in the possession of Tabberone clearly states that $1,000.00 is required from a WAHM who was selling dog collars on eBay that were made from a brown checked fabric that Burberry insisted was infringing. The wording of the letter indicates that if Burberry's demands are not met the Burberry will "consider its legal and/or equitable remedies", a polite way of saying "gimme or we intend to sue your ass off." Many of these WAHMs and small businesses comply with the extortion demands because they are afraid. But the threat of court is a hollow one because the legal costs to Burberry far outweigh the damages they could collect. The letter, dated December, 2008, is obviously an over-blown and jargon-filled missive intended to scare and intimidate the recipient. We do not understand why corporate lawyers insist on sending verbose letters crammed with legalese to persons they know are likely to be uninitiated in and unfamiliar with the legal system, legal references and intellectual property law in general. Copyright and trademark law are not subjects with which the average person is familiar. Perhaps it is the condescending tone and imperious manner of the letters that makes corporate lawyers feel superior. This letter contains an implied threat of harm, false and unsupported assumptions, and a number of outright lies that are standard fare for such demand letters. Melissa Roth, Associate Counsel for Burberry, attempts to place the recipient on the defensive immediately with a variety of statements designed to support the allegations that the WAHM or small business is guilty as claimed and subject to a wide variety of painful and expensive legal remedies. "As you are probably aware" and "it is likely that you are familiar with Burberry " are used as the foundation for "your use of our trademark would therefore be considered ... willful" followed by the threat of enhanced penalties. The enhanced penalties, treble damages and an award of attorneys' fees, are awarded in only extreme cases (in 2005 not one award of treble damages or attorney fees was made although requested in 28 different cases) so this threat is a lie designed to intimidate. Melissa Roth, Associate Counsel for Burberry, also accuses the recipient of "federal counterfeiting", a claim for which she has absolutely no evidence but it adds to the pile of intimidating charges. Roth's claim that "Burberry is entitled to an injunction" is not accompanied by the fact that such injunction would be issued at the conclusion of a trail at which the recipient was convicted of infringement. Further, Roth's claim for an "award of Burberry's actual damages" is weak because it is unlikely Burberry could show any "actual damages" from the sale of a few dog collars by the WAHM ("a few" is not intended to imply that "a few" items lessens the act of infringement if it were infringement). To many companies, trademark enforcement is a cost of doing business. It appears that more and more companies are resorting to trademark extortion for revenue enhancement. What is bothersome is that they appear to target the weak and those who are small businesses instead of going after the really big infringers. On February 2, 2009, an internet search using Google and the words "Burberry" and "replica" yielded 239,000 hits. ALL hits on the first page were very plainly sites marketing counterfeit Burberry products. These are major suppliers and it appears that they are being ignored while WAHMs and small businesses are being targeted for extortion. .