Like playground bullies, trademark bullies are sometimes just insecure—and often have a weakness. Draeke Weseman writes in a recent post that companies wanting to end frivolous trademark litigation could try to get the claims dismissed by focusing on “plausibility.”
The U.S. Supreme Court says that in order for a claim to be plausible, it must be more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Weseman explains this standard could be used to fight claims of confusion, because the bullies often base their claims on the similarity of marks while ignoring other issues such as the strength of the mark, relatedness of the goods, overlapping trade channels and bad-faith intent. “I think if more of the bad trademark claims we see were actually held up to this standard, more of these claims would fail,” he says.
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