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Trademark Abuse |
Last Updated April 9, 2009 |
Most people get the use of the term "Trademark Abuse" wrong. They refer to trademark abuse when they really mean trademark infringement or
trademark misuse. Trademark abuse is where the trademark owner improperly uses their position to threaten or file suit against someone who is not
infringing. Usually it is a corporation attempting to extert control over a mark beyond that legally offered by trademark law. These corporations and their
bottom-feeders, also known as corporate lawyers, use cease and desist letters as one tool to stifle the use
of terms over which they have no legitimate rights. Another tool is the threat of litigation. However, often they succeed because the cost and time of litigation works
against the non-infringing party especially when they are a small company. Like copyright abuse and patent abuse, trademark abuse is an equitable defense
against trademark infringement but hardly anyone uses it.
We don't just rant about these low-life companies and their legal guns-for-hire. We give you examples.
Lets begin with Purina Dog Chow, whose motto should be
Your Pet, Our Passion®: Our Asshole Layers, is a textbook study in the type of cease and desist letters we mentioned here. Purina, using
the heavy-handed tactics of threatening a lawsuit, stopped a Baltimore store from using the name "Chow, Baby" for it's pet food store.
No one, except the beady little pet-brains at Purina, would even begin to believe that a pet food store in suburban Baltimore was affiliated with
or sponsored by Purina because of that name. People are not as stupid as Purina would like you to believe.
Kevin J Greene, of the Thomas Jefferson School of Law, wrote an article for the Harvard Journal of Law and Public Policy, Vol. 27, 2003,
with the lengthy title of
"Abusive Trademark Litigation and the Shrinking Doctrine of Consumer Confusion: Trademark Abuse in the Context of Entertainment Media and Cyberspace".
In the article, he states on page 5:
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"Today, corporations routinely litigate or threaten to litigate trademark cases that are seemingly devoid of any likelihood of consumer confusion. Particularly, in connection with entertainment-related product such as film and music, the cases seem to come from the theatre of the absurd, and reflect that trademark law is being used in an abusive manner out of sync with any traditional trademark rationale." |
Kevin J Greene states on page 32: |
'The hallmark of such litigation is the overreaching assertion of trademark rights, typically by a large corporate entity against a smaller entity. It has been noted, for example, that the “effectiveness of lawsuits to silence corporate critics derives in part from the disparity of resources between the plaintiff corporation and the defendant parody artist.” Abusive trademark litigation exists where the claim involves neither a likelihood of confusion as to product source or sponsorship, nor neither free-riding nor morally repugnant unfair competition.' |
Indeed, large corporations have large treasuries with which to mount protracted litigation and can claim tax advantages for the legal expenses involved while the
smaller alleged infringer lacks these resources and advantages. Click here to read the entire article in pdf format (55 pages).
Lionsgate Film Studio is the subject of this article posted on LikelihoodOfConfusion.com titled
Putting trademark in the corner. We agree with the assessment that Lionsgate Film Studio is
overreaching and is guilty of trademark abuse.
Big companies aren't the only ones who abuse copyrights. Leo Stoller, called Mr Trademark Abuse, was a prime example of trademark abuse in his day
(which fortunately was ended in 2006 or 2007 by his estate being sold). In this lengthy New York Times article, titled
He Says He Owns the Word 'Stealth' are the background facts about Leo Stoller
and his abuses.
We have a number of companies in Tabberone's Trademark & Copyright Abusers' Hall Of Shame
that we consider to be major trademark abusers (just a sampling):
Until there are severe penalties for these companies and their bottom-feeding corporate lawyers the trademark abuses will continue.
Articles about trademark abuse:
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Original material by Karen Dudnikov & Michael Meadors is © 1999-2017 |