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商標霸凌的影響

當其他非商表持有人使用可能引起消費者混淆商品的來源或起源專有權的商標時,商標法便可以保護其商標持有人的專屬權利。要根據商標法來表明一個商標的違法,原告必須證明:(1)他有一個有效,受法律保護標誌; (2)他擁有其標誌(3)被告使用該商標識別商品或服務可能造成消費者的混淆。

作為一個與商標異議的律師,我有許多關於設計來騷擾打壓小企業以使它門放棄自己的商標申請這類恐怖伎倆的第一手資料。這樣的做法其實也涉及到商標侵權和域名搶注等糾紛,以及聯邦法院訴訟的其他相關事宜。這樣的訴訟策略變得越來越流行而且具有更持久也更有害的影響。

截至2010年商標技術和符合規定修訂法案的一部分,國會指示美國專利和商標局(USPTO)採取了一項與以往不同的做法,商標局對所有的商標律師及小企業主和其他有關人士寄出了問卷,以調查他們是否為商標欺凌的受害者。本次調查受訪者分享了他們商標訴訟的戰略和經驗,”尤其是那些可能涉及到企圖強制商標所有者授予的權利範圍的合理解釋商標的權利。”

商標訴訟欺凌戰術徵集例子包括:商標侵權行為,停止/終止函,域名停止/終止函,商標異議程序,商標撤銷程序,以及其他對受訪者造成不利影響的商標有關的事宜,他們的客戶,或業務。

調查的結果呈報至國會,”商標訴訟策略聯邦政府服務以保護商標和防止假冒”強調了一些重要回應。約60%的受訪者認為商標霸凌是一個很大的問題。大部分受訪者表示,國會有責任阻止或防止攻擊性商標訴訟。許多受訪者還鼓勵商標審判和上訴委員會(TTAB)修訂其規則並建立實施對商標異議程序這樣的行為做出嚴厲的制裁。
此呈請是給所有認為一個已經存在的聯邦註冊商標不應再被允許報名的人士來支持取消美國商標註冊的此項做法。然而,這些提起商標訴訟的霸凌者們應該知道他們的戰術已經引起美國國會和美國專利商標局的注意。不久,商標惡霸可能會發現,他們的攻擊性訴訟策略無法大力打擊商標律師,小企業主,及其他有關人士。

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