I am attending the INTA Annual Meeting in San Francisco, and a number of people are talking about the “trademark bully” report released a few weeks ago by the Department of Commerce. During these conversations, it became clear that a few people misconstrued some comments that I made to the press and in my prior blog post . I would like to clarify my views.
While I am not in favor of devoting scarce government resources to address the so-called trademark bullies issue, I have no problem with how the Department of Commerce conducted the study. In fact, I think the Department of Commerce did a good job carrying out the directive of Congress within the mandated one-year period. It is clear that the Department of Commerce, working with the PTO, reached out to a broad range of constituencies and made very significant efforts to obtain input from small businesses as well as trademark owners (which are often larger companies) and organizations representing intellectual property interests. Of the 79 comments received, nearly half were submitted by small business owners or their attorneys. I myself participated in the preparation and submission of comments on behalf of an organization.
In my view, the shortcomings of the “trademark bully” study have nothing to do with how it was carried out, but rather stem from the nature of the assignment itself. We didn’t need a study to tell us what we already know – that some people think “trademark bullying” is a problem and others do not. I certainly do not fault the Department of Commerce for concluding that “it is extremely difficult to determine the extent to which trademark owners may be purposefully overreaching when enforcing their rights, and doing so with sufficient regularity for it to qualify as a significant problem." I agree with that conclusion, and indeed believe that it was the predictable outcome of the study.
The Department of Commerce and PTO did a good job with a bad assignment. Now that the “trademark bully” report is behind us, hopefully their talents can be put to better use.