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Policing Trademark Rights and the Problem Posed By Bullying

By Carl A. Schaffer

Trademark owners have an affirmative duty to enforce their rights in their brands in order to avoid the damage caused by infringement and dilution in the marketplace. This is not to say that trademark owners have a duty to pursue unauthorized uses that have only limited potential to conflict with the trademark owner's rights. Finding an effective middle ground between overly enthusiastic and overly lenient enforcement policies is essential to the development of an effective trademark policing strategy.

Overly aggressive enforcement of trademark rights by high-profile brand owners can lead to consumer backlash when such enforcement is perceived as “trademark bullying” of the “little guy.” Such enforcement efforts have grown increasingly hazardous during the era of Internet blogging and social networking. These mediums have given individuals and small businesses a very tall “soapbox” from which to voice their complaints.

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