As noted in this blog previously, and on many other blogs including the excellent TTABlog, the U.S. Patent and Trademark Office, as part of a study mandated by Congress, issued a request for comment two months ago about overreaching trademark enforcement efforts and their effects on small businesses . Comments are due January 7, 2011.
To date, there seems to have been very little discussion about the USPTO request for comments and study, except among trademark law blogs (see below for links). Why? Surely trademark owners, businesses, organizations, and individuals must have opinions? There are more than 1.6 million active registered trademarks in the United States (see USPTO’s Performance and Accountability Report for Fiscal Year 2010 at p. 139), and there are thousands of trademark disputes contested each year.
Surely reasonable minds can disagree about the issues in the comment request; but they cannot disagree, rebut positions, or work towards a solution if there is no discussion. Will anyone be willing to open up and state a specific opinion? (I certainly will – watch this space in January.)
To my knowledge, no organizations that have a stake in the trademark or business communities have spoken up yet to request information, participation, or discussion from their members or communities. For example:
- Office of the Intellectual Property Enforcement Coordinator (IPEC) – Victoria Espinel was appointed by President Obama to head IPEC a year ago. According to the IPEC website, the Coordinator’s job “is to help protect the ideas and creativity of the American public.” Nothing on the IPEC website or recent IPEC newsletters references the study.
- US Chamber of Commerce – I have found nothing on their website or in their newsletters noting the study to members, even though they are currently putting a spotlight on lawsuit abuse in other arenas at facesoflawsuitabuse.org.
- International Trademark Association (INTA)- I have found nothing on their website or in their newsletters noting the study to members. I have emailed their policy committee requesting information about the association’s position on the comment request, but I have received no response to date. [Disclosure – I am a member of the association.]
- American Intellectual Property Law Association – I have found nothing on their website or in their newsletters noting the study to members. [Disclosure – I am a member of the association.]
- Intellectual Property Owners Association – I have found nothing on their website noting the study to members.
- The lone exception, the American Bar Association Section of Intellectual Property, made a survey for its members available in the last few days on the issue. See here.
- The USPTO website, www.uspto.gov, features several stories or items rotating on the home page each day. The trademark comment request has spent little or no time appearing on the home page. And on the main trademark page of the USPTO website, the information about the request for comments is toward the bottom of the page (you must scroll down to see it) and it is below information about a roundtable the USPTO hosted on December 3rd, more than two weeks ago.
Perhaps these organizations are quietly planning to comment, or have indeed discussed the issues with their members but forgot to post it on their websites. I hope and expect that these organizations will make their opinions known. Any public study benefits from a diversity of opinions and a large amount input. I also hope that these organizations engage their members and their constituents in a reasonable discussion, making any comments more interesting and more effective.
I also expect that the USPTO will publish the comments online so everyone will know who had something to say.
For further discussion regarding the USPTO study, see these excellent blog posts – and the comments posted on them:
- TTABlog: USPTO Seeks Comment on Trademark Bullies You Have Known
- DuetsBlog: http://www.duetsblog.com/tags/trademark-bullying/
- Las Vegas Trademark Attorney: http://www.vegastrademarkattorney.com/2010/01/senator-leahy-d-vt-introduces-trademark.html
- American University Intellectual Property Brief: http://www.ipbrief.net/2010/10/26/uspto-attempts-to-tackle-trademark-bullying/
- Seattle trademark Lawyer: http://seattletrademarklawyer.com/blog/2010/2/21/senate-bill-proposes-study-on-trademark-bullies.html
- Eric Goldman Technology & Marketing Law Blog: http://blog.ericgoldman.org/archives/2010/10/shining_the_spo.htm