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The good news is that today the Wall Street Journal reports on trademark infringement.  See “Name Choices Spark Lawsuits” here.  The article focuses on the pressure small businesses face in defending – or deciding whether to defend – accusations of trademark infringement.  The article wisely notes that many businesses carelessly skip a full clearance search for a brand name prior to using it; such a search preformed and reviewed by an experienced trademark attorney could eliminate many potential claims by advising the business to steer clear of names with potential conflicts.

The bad news is that the article and the accompanying audio story from Wall Street Journal radio focuses on businesses that spent a lot to defend their claim or had to change their name, and fails to spend much time on two other related outcomes: small businesses that fight back and get the threatening party to back down or reach a reasonable resolution; and big businesses that overreach in their enforcement efforts, stifle small businesses, and cost businesses with legitimate non-infringing trademarks tens of thousands of dollars defending claims that have little or no merit.  This scenario, in my experience, is becoming more and more common. Big companies attempt to use their financial strength and attorneys to bring or threaten to bring trademark cases that have little merit because often the small business cannot afford to fight even if it its defenses are great. There is little or no money available to be had in defending an egregious claim, so a wrongly accused business has to weigh the cost of fighting against the cost of costs and harm done by changing the name. While theft of intellectual property no doubt costs the economy significantly, the over-enforcement of intellectual property also costs Americans jobs, revenue, and opportunities to innovate.

I will be covering this issue in more detail in future posts, including my upcoming report from Senate Hearings this week featuring testimony from U.S. Intellectual Property Enforcement Coordinator Victoria Espinel.

A funny (or not-so-funny anymore to the lawyers who sent it) example of overreaching attempts to enforce trademarks:

National Pork Board’s attorneys sent a cease and desist letter to a website regarding their fake April Fools Day product: canned Unicorn meat, “the new white meat.”  http://www.thinkgeek.com/blog/2010/06/officially-our-bestever-cease.html The lawyers apparently didn’t realize it was fake, having not studied the website nor the general lack of “unicorn meat.”

You can’t make this stuff up!

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