Or should it be whom? Anyway, my article on trademark bullying first published in January’s Intellectual Property Magazine and excerpted in this previous post, is now available free and easy for download, right here.
Here’s what the old bloggers would call the “money quote” on that excerpt, if I may. Please forgive the British spelling — it’s that kind of magazine. Links are exclusive to here, though!:
[T]here are real bullies, real abuses of the system, exactly as the economic theory of â€œrent seekingâ€ predicts there would be. The problem is well understood by consideration of one of the best-known trademarks in the US, and one deserving of great protection: SUPER BOWL®, the name of the annual championship game in the National Football League (NFL). Like all IP owners holding premium â€œbrand equity,â€ the NFL has in place an â€œenforcement programmeâ€ designed not only to protect its legitimate rights, but to establish a buffer zone of illegitimate, intimidation-based quasi-rights that have a very real effect because it is never economically rational to test them in court. Such a buffer zone establishes a zone of litigation-based (not legal-based, litigation-based) early warning triggers around the real rights, such that any purported infringer of the trademark â€“ even a party making a protected fair use of the SUPER BOWL® mark â€“ would have to traverse the hopelessly expensive no-manâ€™s land of illegitimate litigation threats to establish his defense.