Abstract
This article suggests some pause for reflection amongst intellectual property lawyers, and for serious consideration of the words of an internationally-renowned IP law expert: "Possessing a right does not mean that it is a good idea to enforce it always, and to the hilt. Discretion may be nine parts of possession". It provides some prominent, recent examples of trademark bullying or overly-aggressive enforcement in the IP law context. These examples are mainly from other jurisdictions but they are directly relevant to some of the IP law challenges present in South Africa at the moment. The article further examines why lawyers and rights' holders engage in trademark bullying (why it's done), and start to deal briefly with some of the legal implications. A future article is to examine the legal aspects of trademark bullying in much more detail and considers its legitimacy within the context of IP law, more generally, and some other areas of law, more specifically.Keywords: Trademarks; Trademark infringement; Intellectual property; IP rights; Overly-aggressive enforcement; Rights holder over-reach; Litigation strategy; Cease-and-desist letters; Strike suits; 'Trademark extortion'; 'Duty to police'; Streisand effect; Ambush marketing.
Highlights
Schoolyard bullying is a troubling social ill that has attracted growing attention in the past decade
Today I have a slightly more jaded view of the Intellectual property (IP)-law industry and of the tactics sometimes employed by IP rights' holders and their legal advisors in order to mercilessly squash the other guy in what often amounts to David vs Goliath-like litigation or legal posturing
In the foregoing discussion I have attempted to introduce those readers who may be less familiar with the concept of trademark bullying to this interesting phenomenon by means of examples of such conduct as well as some rather broad evaluation of the reasons why IP lawyers and their clients may engage in this practice. This piece has been mostly descriptive of the forms of bullying encountered to date
Summary
Schoolyard bullying is a troubling social ill that has attracted growing attention in the past decade. Today I have a slightly more jaded view of the IP-law industry and of the tactics sometimes employed by IP rights' holders and their legal advisors in order to mercilessly squash the other guy in what often amounts to David vs Goliath-like litigation or legal posturing In this regard, this article will examine what has become known in the United States[9] and elsewhere as "trademark bullying" (or "trademark extortion") and the generally overly-aggressive rights' enforcement measures. The future article will conclude with some suggestions for dealing with overly aggressive enforcement strategies, including the possibility of legislative intervention by the relevant authorities in order to discourage lawyers' recourse to it, and to provide remedies for the targets of unfair bullying. Let's share a chuckle about some of the ways in which some well-known IP rights holders (and others) have recently managed to very publicly shoot themselves in their collective foot - by playing hardball, when they should probably have just 'chilled' a little
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