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How Trademark Laws Are Sometimes Abused By Aggressive Practices

Trademarks are quite funny. They are a great way to give organizations incentives for diverting part of the profits they make to prevent sharp and fraudulent dealings. On the downside, they are used by companies for legal bullying; stealing words.

Why Trademarks are Important

Trademarks are very essential when it comes to consumer protection; a company was sued by another one for marketing using deception. It was concluded that the suing company associated a mark, word or design, along with its services and products. The sued company then used the other company’s mark to market its services and products.

This affected the public; they mistook the sued company’s products for those of the suing company. This is wrong. You deserve to get what you pay for, not something that has been made to look like what you wanted.

There are companies that specialize in trademark laws. Companies such as UUtech deal with copyright scams, which promotes consumer protection and enhance company image.

About Bullying…

Does it build character? Trademark bullies are entities enforcing a trademark through a claim that is overreaching (usually through desist and cease letters) against other entities or people that have less resources. The level of this problem and its solution must be looked at. Let us do this metaphorically.

People have tried to determine whether the problem of trademark bullying, or abuse of trademark enforcement exists. There are anecdotal accounts of overreaching claims by trademark holders against entities or persons who have fewer resources. Some countries give a hard time for such claims due to such First Amendment rules as free speech, which are drawn in or due to fair competition being threatened.  

Among the most famous accounts of trademark bullying was that about Monster Energizers enforcing its trademark at the expense of the smaller brewery which offered the beer "Vermonster." My favorite case, however, is that about Louis Vuitton sending desist and cease letter to an IP group of students at Pennsylvania School of Law, which ordered them not to use his trademarks to advertise their school symposium. There are plenty of such anecdotal accounts.

According To the Law

The EU Directive of Unjust Business Practices (the 11/05/2005 Directive 2005/28/EC) handles the injustices in business-to-consumer financial practices; it does not handle those among businesses. The 2007 Act of Consumer Protection began to operate on May 2007.  It is executed in Ireland. The Act had all its sections executed, except for Sections 49 and 48, which are about surcharges on some methods of payment as shown below.

The Act states that that some misleading, aggressive and unfair trading activities are prohibited ,if they threaten to impair your informed decision making regarding the concerned product and make you decide on a transaction that you did not intend to choose. These activities are prohibited if they are:

Aggressive, misleading or unfair

Likely to change your consumer decision

The Act states also that some activities are always prohibited; regardless of whether they change consumer decision.

The agency in charge of enforcing the Act’s provisions is the Consumer Protection and Competition Commission. The Ireland Central Bank is also involved in the enforcement of provisions on financial services. 

Aggressive Practices

These practices involve coercion, inappropriate influence or harassment which denies you the freedom to choose, hence affecting your choice on what to purchase. The Act gives examples of such practices; it does not include all of them. Some of these aggressive commercial activities include:

Coercive and intimidating consumers sales methods

Using abusive or threatening practices

Practices which attempt to exploit vulnerable consumers. Vulnerable consumers are those who may be seen as vulnerable due to credulity, age, physical or mental disability

 

Traders imposing disproportionate or onerous non-contractual obstacles when a consumer wants to exercise a right as per the contract or terminate the contract, or move to another trader or product

The trade threatening to take the law into his/her hands

How Trademarks are Abused

Brand Association

Some organizations advertise their products and services using logos, symbols and word that are associated with a famous company. This practice is deceptive, and in serious cases, illegal.

Public Interest

Public interest is meant to be protected by the law. It cannot be undermined, under any circumstance, by the weakness or strength of a connection of a certain mark or word with a certain organization. Public interest involves fraud prevention, and the role of trademark is to protect public interest through protection of company profits as an incentive.

Parting Shot

The role of trademark is not creation of associations, but rather protection of associations. However, for many years, it has been used as a loophole for companies to take common words and use them as their own property; using their words is even dubbed ‘trademark bullying’.

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