Trevor Little

Web-based filing company Trademarkia.com has announced its annual trademark bullies and victims lists for 2014. While Monster Energy Company was named the biggest bully, it’s important that the list is approached critically.

The release explains that Trademarkia “ranks companies as bullies when they have ‘opposed’ more trademark applications of other companies than anyone in their trademark classification”, identifying the largest trademark bully of 2014 as “Monster Energy Company” which opposed more than 60 US trademark applications in the year 2014. Its top 10 are:

  1. Monster Energy Company
  2. Duke University
  3. Under Armour
  4. Deutsche Telekom
  5. Wolters Kluwer US Corsearch
  6. 3M Company
  7. Beats Electronics,
  8. Citigroup
  9. Threshold Enterprises
  10. Facebook

The list will get probably get picked up by media looking to capitalise on the ‘big company picks on little company’ narrative, but more nuanced analysis will likely be lost. When we spoke to Trademarkia’s CEO Raj Abhyanker back in 2012 he told us that one of the avenues for aggressive enforcement is the opposition process, noting: “One of the difficulties is that it is not a level playing field – only big companies have had the ability to pay for the watch report services that tell them when 30-day opposition periods came in. So the only people able to use this opposition tactic are large companies.”

But should use of the opposition procedure really lead to the bully label? Large companies will also have significant portfolios, and more marks to police, so it is natural that they will file more oppositions. Higher opposition numbers, then, are actually an indicator that the trademark team is doing its job. While it is not far-fetched to think that some oppositions may be a bit of a stretch, each should be seen on its merits rather than automatically categorised as a bullying attempt.

The site also provides a list of the top 10 victims – ie those whose marks were opposed most often – and this also illustrates the nuances that can be lost when categorising companies-based opposition statistics. The top 10 ‘victims’ last year were:

  1. Alpha Omega Epsilon
  2. Apple
  3. Citrix Systems
  4. Independent Insurance Agents of Texas
  5. Allin Interactive Corporation
  6. Acme International Enterprises
  7. aTherapy
  8. Edible Arrangements
  9. Global Clean Energy Holdings
  10. Laracuente, Juliette

Again, semantics is all important. One person’s ‘victim’ could be seen as another person’s ‘potential infringer’, hence the need for opposition actions. Or perhaps the presence of a company such as Apple highlights that – just as a large organisation’s extensive portfolio will likely result in more oppositions being filed - its many filings will naturally garner more oppositions, hence it will of course appear on a ‘victims’ list.

Both are useful arguments for arguing against the ‘victim’ label. The reality, though, is somewhat different. The ‘bullying’ of Apple in 2014 relates to just three oppositions. The top victim was subject to four – while those ranked five through 10 were the ‘victims’ of two oppositions.  Is someone really a victim of bullying if they have had a couple of applications opposed?

The lists are interesting and will likely generate coverage for Trademarkia, but it would be a shame if coverage takes the list at face value and doesn’t question whether those featured truly are ‘bullies’ or ‘victims’. 

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RE: Monster Energy Company heads trademark bullies top 10, but list is not all it seems

One might think of a "victim" also as a company that does a poor job clearing trademarks.

Anonymous user, on 02 Jun 2015 @ 13:39

RE: Monster Energy Company heads trademark bullies top 10, but list is not all it seems

Watch service are actually pretty inexpensive. The significant cost is hiring outside counsel to represent you in an opposition proceedings. Opposition proceedings in the U.S. are mini-trials, with the proceedings being recorded by court reporters instead of being presented live in a courtroom. The parties can conduct discovery, and the costs can rival those of a full-blown trial in some cases.

Michelle Brownlee, Bose Corp on 28 May 2015 @ 15:19

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