MEMO TO INTA: ICEBERG AHEAD! ICEBERG AHEAD! YOU CAN'T AVOID IT BY SHUFFLING DECK CHAIRS
I respect Alan Drewsen, the Executive Director of INTA. He is a thoughtful man. But the comments he recently submitted to the United States Patent and Trademark Office about trademark bullying were warmed over pablum. Meant to mollify INTA's members. Mr.Drewsen's remarks can be summarized as follows:
Problem what problem? If there IS a problem it's simply that the public and small brand owners don't understand the crushing burdens faced by blue blood brand owners. And the Internet has only made it worse!! Now the misunderstandings get amplified.
And the solution? Keep everything just as it is. But educate the unwashed on the subtleties associated with the terribly complex topic of trademark law.
Ironically INTA's testimony was released on the same day that an ex employee of the Coach leather company filed a class action lawsuit against the company. When she attempted to sell her genuine Coach(R) bags on eBay, her eBay account was suspended and she received a threatening letter from the Coach lawyers. They charged her with selling counterfeit goods. They stated that she might have to pay as much as 2 million dollars for her sins. And they insisted that she send them $300.00.
And it gets better. An independent trademark blogger noticed that the the letter in question was almost certainly a form letter, since he found another letter from the same firm, with almost identical language and an identical signature, sent to a different small entity.
To summarize: highly visible, large brand owner sends over the top form letter to individual, ex-employee, selling genuine goods. Without ever bothering to check the basics. Oh yeah, highly visible, large brand owner also gets eBay to shut down ex-employees account.
And what does the ex-employee do? Unlike the old days- pre Internet- the little person doesn't simply roll over. Nope. Instead the little person go trolling( couldn't resist) for others who had suffered from such bullying.
But the courts can sort it all out? Oh really. As Professor Kenneth Port has noted in describing the "death" of trademark law, as the number of trademark cases filed has gone up the number of reported decisions has dropped by 40% in the last several years. Could it be that cases are being filed for some reason other than a need to have a court decide?
What about the PTO? Do a search for Apple, Inc. or Kelloggs at the Trademark Trial and Appeal Board. You'll find over 100 pending oppositions, cancellations or requests for extensions of time to oppose. Kelloggs filed 55 opposition actions in 2009 alone. But EVERY ONE of these supposedly infringing trademarks had cleared the PTO examination process. Can that process be so deeply flawed? Are the blue bloods really forced to file so many actions to prevent their rights from eroding?
Or could it be that some brand owners want to build legal rights using the legal system instead of the marketplace. Or could it be that the Internet has created resale headaches of enormous proportions for brand owners who don't want any such secondary sales. Or could it be that without using trademarks as a barrier to entry, its just too darn easy for David to take on Goliath?
I may not have a clue as to why. But something has emboldened or forced some brand owners to instruct their legal handmaidens to engage in a course of conduct that cries out to be understood using one word. Bully