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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:

"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."

[emphasis added]

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):

  • American Red Cross, who appears to be spending contributions attacking the innocent use of their symbol
  • Blue Jean Teddy, and their clueless representative at Springs, Brad Bailey, who went on a directionless rampage concermning their fabric
  • Bumble and bumble a cosmetics firm that doesn't want their over-priced glop sold on eBay,
  • Burberry who has been shutting down eBay auctions for authentic Burberry merchandise.
  • Creative Memories the scrapbook people, who say they own "creative" and "memories" and you can't use them together in any form.
  • Fleurville who is one of the reasons we believe there should be severe penalties for trademark abuse.
  • Girl Scouts of America, who could be spending all that cookie dough on something really constructive
  • sHit Entertainment, who has been knawing on some lead-based paint of their own.
  • Just Born & Marshmallow Peeps, who act like they just fell off the turnip truck in their ridiculous trademark infringement claim concerning a baby crib set
  • Krispy Kreme where the hole in the donut is smaller than the hole in the collective heads at KK
  • Love Potion Perfume for telling the world they own the exclusive rights to the commercial use of "love potion".
  • Merle Norman Cosmetics for telling eBay to terminate auctions of re-sellers of their cosmetics because they violate FDA regulations
  • Monster Cable, in our opinion guilty of lying, extortion, being terminally stupid and incredibly overreaching.
  • m3girl designs, owned by 13-year old Maddie Bradshaw, who claims she owns her ideas and you cannot use them.
  • Ojon Corp,, a Canadian cosmetics manufacturer, who doesn't want their products sold on eBay. The "people of beautiful hair" and a shitty attitude.
  • Sykel Enterprises for being terminally stupid.

Until there are severe penalties for these companies and their bottom-feeding corporate lawyers the trademark abuses will continue.

Articles about trademark abuse:

General
Articles | Cease and Desist Letters | Federal Court Cases | FAQs & Whines | Glossary | Hall Of Shame | Contributions

Corporate Lawyers
Cartoons | Code Of Ethics | Courtroom Remarks | Definition Of A Lie | Jokes | Lawyers | Lying | Who Have Lied

eBay - Land The Game

Definitions

Trademark Definitions
Blurring   |   Confusion   |   Damages   |   Dilution   |   History   |   Initial Interest Confusion   |   Likelihood Of Confusion   |   Material Difference Standard
Parallel Imports   |   Post-sale Confusion   |   Puffery   |   Secondary Meaning   |   Subsequent Confusion   |   Trademark Abuse
Unauthorized Use   |   Unfair Competition   |   What is a Trademark?
Copyright Definitions
Angel Policies   |   Contributory Infringement   |   Copyrightability   |   Copyright Extortion   |   Copyright Misuse Doctrine   |   Derivative   |   The Digital Millennium Copyright Act
EULA   |   Fair Use   |   First Sale Doctrine   |   Product Description   |   Registration   |   Registration Denied   |   What is a Copyright?   |   What is not Copyrightable?
Other Issues
Embroidery Designs   |   FAQs & Whines   |   Image and Text Theft   |   Licensed Fabric   |   Licensing & Licenses   |   Patterns   |   Patterns Index   |   Profit   |   Quilting
Selvage   |   Stanford School of Law Case Outline   |   Tabberone Disclaimer   |   Trademark Extortion   |   Urban Myths   |   What To Do If You Are Veroed

Federal Court Cases
Alphabetically | by Federal Circuit | by Subject | by Court Quotations

Federal Statutes
Copyright Act 17 U.S.C. 5 | Digital Millenium Copyright Act 17 U.S.C. 12 | Lanham Act 15 U.S.C. 22

Federal Lawsuits
Filing A Federal Lawsuit
Setting Up | Standing. | Joinder of Parties. | The Complaint | Their Answer | Default Judgment
F.R.C.P. 12(b) Motion | F.R.C.P. 12(f) Motion | Your Reply | Summary Judgment Motion | Affidavits | Time Extension

Defending Against A Federal Lawsuit
The Complaint | Your Answer | Denials | F.R.C.P. 12(b) Motion | F.R.C.P. 12(f) Motion | Affidavits | Time Extension

VeRO (Verified Right's Owner Program)
VeRO Commandments | VeRO-Verified Rights Owners Program | Counter Notice Letter
Counter Notice (pre-2003) | Counter Notice present | On-Line Survey from 2004 | Articles about VeRO | What To Do If You Are Veroed

Original material by Karen Dudnikov & Michael Meadors is © 1999-2016

 

 

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