Why So Many Frivolous Trademarks?

No man is entitled to the blessings of freedom unless he be vigilant in its preservation.

Douglas MacArthur

Insiders say frivolous trademarks are responsible for millions of dollars lost/stolen from small businesses each year. Every business owner owes it to themselves to learn how to defend themselves from frivolous trademarks and trademark trolls. Yet, learning is not enough. (For more on this topic, see “Why can’t you play fair?”)

 Knowing is not enough. We must apply. Willing is not enough. We must do.

Bruce Lee

At this point, you may be wondering, “Why are so many frivolous trademarks getting registered?” Good question. Here’s the six-word answer: Ignorance and apathy (yours and mine).

USPTO is counting on you!

The US trademark registration process includes an option for anyone, anywhere to file a Letter of Protest against applications that should not be granted. Why? Because USPTO depends on competitors (“stakeholders”) to share vital market information with them so they can issue quality registrations.  

For most of the terms we protest in the novelty apparel/print-on-demand industry, the legal basis of the Letter of Protest is “failure to function as a source indicator.” The main legal test for this is, “What is the consumer’s perception? What’s their first impression of this phrase? Brand or popular saying? Or, when it comes to jewelry, maybe it’s simply an item description?”

What you MUST get from this post

Those of us in the print on demand industry will have a much different first impression than the average USPTO attorney. 

The folks at USPTO are not marketing experts. They are legal experts. IP law is notoriously complex, and the question of whether a term should be available for registration depends on many factors. It’s up to you and me to supply USPTO with relevant information — information we can easily provide!

USPTO expects you to let them know if a registration will negatively impact your business. That’s why the Letter of Protest system exists. That’s why it’s free. 

So, the reason so many frivolous registrations have been issued is that we didn’t know what we didn’t know:

  • We didn’t know we were supposed to be watching out for the black-hat tactics of trademark trolls. (Ugh!)
  • We didn’t know we weren’t supposed to make the mess bigger by trying to beat them to the punch with our own frivolous applications. (Oops!)
  • And after learning how the system is supposed to work, most will be too apathetic to get involved.

(Cue the music: Dum-dum-dah-dah, dum-dah-dum-dah-dum-dah-DUMB!)

Small business ownership comes with responsibilities that have nothing to do with selling your awesome stuff. But most newbies in the Print on Demand space are ignorant of those responsibilities, or unwilling to take them on.

We’re like that toddler in the messy diaper. We think someone else should clean up the mess.

Uh, no. 

It’s time to put on the big boy pants. 

define: Trademark Trolling

I have always thought the actions of men the best interpreters of their thoughts.

John Locke

define: Trademark Trolling

Trademark trolling means using one’s trademark registration to limit competition. Here’s the technical definition of trademark trolling:

The United States Patent and Trademark Office (“USPTO”) defined the amorphous term Trademark Bullying or Trademark Trolling as the vexatious practice of a “trademark owner that uses its trademark rights to harass and intimidate another business beyond what the law might be reasonably interpreted to allow.” 

Source: IP Watchdog

 It happens in every industry: big brand sues little brand for “IP infringement” over the use of a similar name, even though the average consumer would not be confused.

But it’s not always a big brand. Trademark trolls come in every “size” of business. See my Stealth post for one glaring example. See Dr. Roberts’ article for a peek at why they are so successful. 

Not all frivolous trademark owners are trademark trolls. Some are simply uninformed folks following bad advice to protect their assets. More on that another time.

Trademark trolls can be split into two categories: those that use legitimate trademarks, and those that use frivolous trademarks. 

Rules of the Game (IP for Newbies)

You have to learn the rules of the game. And then, you have to play better than anyone else.

Albert Einstein

To clean up the frivolous trademark mess at Amazon and Etsy, we need to start with a basic understanding: 

Trademark is for Brands, Copyright is for Designs 

Trademark is for brands, for example:

  • Ann Arbor T-shirt Co.
  • Disney
  • Southern Attitude
  • Star Wars
  • Under Armour

Each of the above brands offers unique selling propositions (USP) to attract loyal customers: 

  • Ann Arbor T-shirt Co. — employee models, special inks, Michigan artists
  • Disney — entertaining customers via media and amusement parks
  • Southern Attitude — celebrating Southern pride
  • Star Wars — media empire built on successful movie series, toys, decor, etc.
  • Under Armour — influencer marketing partnerships, sports camps, fitness app, inspiring ads

Trademark protects consumers from getting counterfeit products, thus protecting a brand’s reputation and value. 

Suppose products from Brand X (a hypothetical, high-end clothing company) are being copied and sold at a lower price by a knock-off supplier who slaps the “Brand X” logo onto their cheaply made products. The US trademark system recognizes:

  • Brand X may invest millions of dollars in marketing campaigns to build brand loyalty and trust; 
  • A purchaser whose counterfeit Brand X shirt falls apart after one washing may conclude product quality is not a priority with the Brand X company, devaluing the brand; 
  • If Brand X has registered BRAND X as a trademark, they can pursue legal action against the knock-off supplier to force the removal of these counterfeit products from the marketplace.

Copyright works the same way, except that instead of protecting a brand, it protects original creative works. Think paintings, songs, plays, books, etc. 

Simple, right? Trademark and copyright are wonderful inventions when used properly. But greedy or fearful people often abuse the system to “protect” their turf and chill competition. 

The “Trademarks” section of my blog focuses on trademark abuse in the print-on-demand industry via twin bandits: frivolous trademarks and trademark trolls.