Labels are often unflattering, especially when they imply some form of wrongdoing. In the contentious world of intellectual property litigation, the “trademark bully” label instantly conjures up images of corporate America crushing the entrepreneurial spirit of small businesses. Although some trademark owners erroneously believe their property rights extend well beyond the limits of the Lanham Act, others legitimately seek to protect what is rightfully theirs. These conflicting interests, often the subject of media scrutiny and public outrage, have been brought into focus by a trademark bill signed into law earlier this year.
On March 17, President Obama signed the Trademark Technical Conforming Amendment Act of 2010 into law. The act makes a number of technical changes to the Lanham Act, a federal trademark statute. Its primary purpose is to harmonize filing procedures between trademarks filed in the United States directly and those filed abroad pursuant to the Madrid Protocol. But another provision, quite different in nature, was tacked on to the legislation. This provision provides that within one year of the act’s enactment, the secretary of commerce, in consultation with the intellectual property enforcement coordinator, must report to the House and Senate judiciary committees on “the extent to which small businesses may be harmed by litigation tactics by corporations attempting to enforce trademark rights beyond a reasonable interpretation,” and “the best use of Federal Government services to protect trademarks and prevent counterfeiting.” S. 2968, § 4. This section has been referred to as the “trademark bullies” provision.
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