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2 Cybaris 13 (2011)


I appreciate the opportunity to respond to the Request for Comments on the extent to which small businesses may be harmed by litigation tactics by corporations‟ attempts to enforce trademark rights beyond a reasonable interpretation of the scope of the rights granted to the trademark owner; the best use of Government services to protect trademarks and prevent counterfeiting; and appropriate policy recommendations.

The PTO should be commended for considering whether the use of trademark litigation as a form of “bullying” is a problem for the U.S. trademark system. While some consider trademark litigation as a justifiable effort to police marks to avoid acquiescence to infringing uses, our comprehensive study supports another explanation. We have observed that trademark litigation is increasingly used as a bullying tactic, rather than an effort to reduce serious infringing activity. Merriam-Webster’s Collegiate Dictionary defines bullying as treating others “abusively” or “to affect by means of force or coercion.”

I urge you to consider the suggestions made herein, including adoption of a “Fame Registry” by the PTO, creation of a federal cause of action for bullying under the Sherman Act, and finally, the recommendation that Congress amend the FTDA to make the test for dilution “actual dilution,” rather than a “likelihood of dilution,” wherein plaintiffs would not be encouraged to obtain fame at any cost.