"Patent troll," "copyright troll," and "trademark
bully" are labels with generally negative connotations. Most may say that
we need less of all of the above, including less enforcement by these
"evil doers." However, defining exactly what might fit in one of the
above categories can be challenging. In some ways, it is like telling my
children that people are not bad, but may engage in bad behavior. For example,
Professor Lemley explores the conduct of some universities in a thought
provoking article with the provocative title "Are
Universities Patent Trolls?".
Interestingly, with so called "trademark bullies," a definition has been very elusive although some may say a trademark bully is an entity with a lot of resources enforcing a trademark against an entity with less resources (usually by a substantial amount) with a trademark theory that is either unsupported by trademark law or is a bit of a stretch. And even more interestingly, when one searches for trademark cease and desist letters posted on the Chilling Effects Clearinghouse website, that collects cease and desist letters, a vast majority of the letters are posted by Google--the apparent victim of bullying. Leaving aside the definitional issues involving trademark bullies, there is a space where there appears to be a need for more trademark enforcement--not less. That space involves nonprofits.
A few years ago, the well-known and well respected nonprofit Susan G. Komen For the Cure received some not so positive press about its enforcement of "for the cure" against other nonprofits--specifically smaller nonprofits. It was essentially labeled an evil "trademark bully." But, do we need more of that? A recent study and article by CNN, Tampa Bay Times and the Center For Investigative Reporting, outlines the 50 worst charities in the United States and discusses an apparent tactic of some "bad" charities that choose trademarks similar to respected charities and use telemarketers to secure donations--most of which never reach the intended beneficiaries. The article states:
Why isn't there more trademark enforcement in this space? Is it because of the Komen problem where the nonprofit can look very bad very quickly depending on who they choose to enforce their mark against? Do we need more "bullies" and less shame here? An interesting 2013 article "Trademarks for the Cure: Why Nonprofits Need Their Own Set of Trademark Rules" by Lauren Behr in the 54th volume of the Boston College Law Review explores whether nonprofits need special trademark rules.