Trademarks = Big Business + Big Money
For many businesses today, trademarks can be the most valuable asset that they own. For example, as shown in the table below, Coke is widely considered to be the most valuable soft drink brand in the world, worth almost $90 billion.
With this kind of money at stake, it’s no wonder companies will sometimes fight tooth and nail to protect their brand, even when their brand isn’t truly threatened. Sometimes, companies take a very hard line against competitors and seek to shut the competition down, in any way that they can. This can lead to companies fighting over their trademarks as each company tries to seize the advantage. In this series of posts, I’m going to present a few of the most notorious types of battles that take place in the world of trademarks. We’ll start with one approach that has been increasing dramatically over the past few decades. The “Trademark Bully.”
Everyone Hates a Bully.
We all know bullies and most of us have had to deal with bullies at some point in our lives. Maybe it was in grade school in the lunch room when one student was taking dessert from another student. Maybe it was in high school, after PE when someone snapped a towel to leave a painful welt on their victim. Regardless of the time and place, it’s never any fun to deal with a bully. Now, if you’re a business owner or entrepreneur, I need to introduce you to a new kind of bully that may try and push their way into your life. I’m talking about the infamous and annoying Trademark Bully.
What is a Trademark Bully?
While protecting a trademark from improper use by others is part of being a trademark owner, sometimes a trademark owner may undertake enforcement measures based on an unreasonable interpretation of the scope of their rights for the purpose of intimidating alleged violators into compliance with the trademark owner’s demands.
In general, the United States Patent and Trademark Office (USPTO) defines trademark bullying as “the act where the trademark owner that uses its trademark rights to harass and intimidate another business beyond what the law might be reasonably interpreted to allow.” Most cases of trademark bullying involve a large, well-funded company attacking a much smaller company in order to improperly squash potential competition.
In many cases, a trademark bully will attack another company and force them to comply with what are often unreasonable demands. Since the trademark bully is often a much larger company with lots of money and lawyers, many smaller companies simply can’t afford to fight the fight and they will just acquiesce to the trademark bully’s demands. The act of trademark bullying has become so widespread that the US Congress published a report on the subject of trademark bullies, discussing the potential for trademark abuse.
Against that backdrop, here are some real-world examples of trademark bullying.
Bully #1 – Monster Energy.
Monster Beverage Company, the company behind the popular Monster Energy drinks, is a notorious and very active trademark bully. Monster is partially controlled by Coca-Cola and routinely targets companies large and small, threatening expensive legal action if the target doesn’t behave as Monster would like. I’ve had a couple of clients run afoul of Monster and it’s no fun for a small company when they get threats from a $55 billion company like Monster.
To better understand the scope of the problem, in the United States Patent and Trademark Office alone, Monster has filed more than 100 objections against other companies’ trademarks and routinely forces much smaller companies to abandon their trademarks, even when the actual likelihood of confusion is negligible or non-existent.
Here is a link to the story about an instance where Monster Beverage Company went after the popular Pokemon properties, claiming that people would think “Pocket Monsters” were somehow affiliated with or sponsored by Monster Beverage Company.
That’s just one of MANY examples. Here’s a compilation of additional companies that have been targeted by Monster.
Stay Tuned for Part 2.
With this short introduction, you can begin to understand the problem. In the next installment of my blog, I’ll provide additional examples and, most importantly, give you some advice on how you can deal with trademark bullies if and when you need to.
Disclaimer – Yes, I’m a lawyer, but I’m not your lawyer. All information in this post is provided for educational purposes only and should not be considered legal advice for any specific person or specific situation.
Remember – Be Smart. Be Legal.