Enforcing and policing a trademark against unauthorized use is an important part of keeping a trademark alive, healthy, valuable and strong. However, as with all things… there is a fine line between being strong and being a bully. It’s important to use common sense to discern these two categories… because, not only is bullying unattractive (in any context) but it can also be counterproductive when policing trademarks.
Trademark enforcement is often based on ‘the likelihood of customer confusion’ …ie will folks at the store or shopping online be confused when making purchases and inadvertently buy one product instead of the other or think that the products are made by the same company. If there is no way that folks could possibly be confused about the two products or the source of the two products… then Trademark Bullying begins.
For example, would you be confused when buying a $9 ‘Chewy Vuiton’ dog toy and think that you are actually buying a Louis Vuitton handbag? …No.
For example, would you be confused when buying couch potato ‘South Butt’ loungewear and think that you are buying ‘North Face’ mountaineering gear? …Probably not.
Not only are consumers not confused, but they think it’s funny and often rush to purchase the spoof brand once news surfaces of the alleged infringement. Trademark Bullying in situations like these often increases the popularity of the alleged infringer. What’s the moral? Use common sense when enforcing a trademark and avoid Trademark Bullying.
BY: Vanessa Kaster, Esq., LL.M.
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