Friday, March 09, 2012

The Empty Threats of Trademark Bullying

Two instructive examples of trademark bullying this week:

The first comes from, of all people, the organizers of the South By Southwest music festival. Lawyers for SXSW sent a cease and desist letter to the makers of "lastsx.sw", an app designed to help users track down bands they'd like to hear at the festival.  

The second comes from serial trademark abuser Louis Vuitton group, which via its lawyers snottily objected to the marketing materials prepared by an intellectual property group at the University of Pennsylvania law school for a symposium on "fashion law."  Here's the (rather cleverly-done) piece that produced so many wadded panties at LVG legal:

The reactions of each group to this bullying will tell you a little bit about what's really behind these threats.  The young tech guys behind the app caved; Penn Law School sent back a sharply-written reply to LVG that might be loosely translated as "get bent."

This difference comes not only from the fact that Penn Law School is a) amply able to defend itself and b) full-to-bursting with lawyers, but also from a little secret good lawyers know:  that the vast majority of the time, threats like this are nothing more than empty bluster.  The attorneys writing these frothing missives have no intention of making good on them.  

Or to put in the parlance of the home of SXSW - they're all hat and no cattle.  They just want to scare you, to intimidate you into agreeing to their demands.  In the case of lastsx.sw, mission accomplished.

Most good attorneys I know will rarely send threatening letters.  They reserve them only for cases where there IS a real issue, and they and their client fully intend to follow through with a lawsuit.  Or they'll just file the lawsuit and then make their demand.  Unfortunately, there are many attorneys out there who can't control their clients, or who value the billable opportunity more highly than the overall outcome to their client, or who have found that the return on their empty threats is good enough to justify the cost to their reputations.

In my business, I deal with bullying attempts like this on a near-daily basis.  I've been threatened with a lawsuit over 300 times in the last few years. I've had claims made that ignore the First Amendment or other laws. Claims that flat-out make laws up. Claims of butthurt masquerading as defamation.  And claims, like these two, that argue for outrageous extensions of copyright or trademark law. 

I've denied every single one of them. Every attorney who wanted a profile, client review or rating removed and threatened a lawsuit to get this result got the same answer: No. 

How many of them sued after getting this disappointing answer? Zero.

Some attorneys just can't help but try to throw their weight around. But that doesn't mean you need to take them seriously when you're operating within your rights.

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