Big win for Big Business
Times change for the small business owner
The pressures of trademark disputes have led the U.S. Congress to precipitously pass into law a bill updating its trademark law; the Act (S. 1461) was introduced in the Senate on July 29, followed in the House by a very similar Act (H.R. 3028) on October 6. The bill was criticized by several public interest representatives as a heavy-handed extension of tradmark holders’ rights at the expense of small business owners. The bill is vague enough to make the possession of un-trademarked names dangerous for legitimate small businesses and organizations because trademark holders are encouraged to bring suits, no matter how frivolous or vague.
H.R. 3028 demonstrates a strong bias toward large, established corporations by expanding the rights of trademark owners far beyond any given under existing law.
H.R. 3028 allows established corporations to drive away new competitors and stifle innovation. The bill creates draconian statutory penalties even if no damages are shown. The penalty provision enriches trademark owners at the expense of entrepreneurship, and the creative outreach efforts of small business and noncommercial organizations.
Daily News
Small Business: Big Decision
When faced with the daunting task of defending its name, small businesses will not defend it under this process. They cannot afford it in time or money. Rather they will simply give up. They will surrender the name, even when they are not infringing on a trademark and are legitimate users of the name. The vast majority of the time the challenger to a business name will be a large company with deep pockets and the defending party will be a small business, organization, or individual.
The U.S. Small Business Administration's Office
Name Resolution Overbroad - Small Business Suffers
“World Intellectual Property Organization (WIPO) name resolution is overbroad and has an undue detrimental effect on small businesses who are not infringing on trademark rights. In particular, Advocacy believes that the dispute resolution process provides large corporations with deep pockets the ability to unjustly expand their trademark protections beyond the rights accorded by law by leveraging the expensive and extensive process”.
U.S. Small Business Administration
Trademarks are more important than ever.
If you're investing time and money in a brand name or intend to do business: trademark your name. Before the invention of the Internet, you may have happily and legally done business in your community without being confused with a business using the same name in another state. Now the law says, if one of you puts up a website, customers won't know who's who. Even if you're legally in the clear, in trademark issues, the side with the greatest ability and willingness to spend money on lawyers gets their way.
USA Today
Small Business at Risk
"Corporate Trademark holders need to prove nothing yet can have a small business’ name revoked without so much as a requirement that the claim be reasonable. Under today's Policy, NSI continues to give trademark owners the benefit of an injunction against the small business without any proof of infringement or likelihood of confusion."
DNRC President Mikki Barry
“There are a number of areas now in which new and exciting business models are being threatened.”
Peter S. Menell, Boalt Hall School of Law at the University of California, Berkeley
Name Policy detrimentally impacts the Economy
“World Intellectual Property Organization (WIPO) name resolution detrimentally impacts the Economy. Small businesses employ 52 percent of private workers and employ 38 percent of private workers in high-tech occupations. Virtually all of the net new jobs in the United States were provided by small businesses. Small business is the engine that drives the U.S. economy”.
U.S. Small Business Administration
Small Business Targeted
“Most name disputes involve large companies, who hold a trademark, challenging small companies and individuals, who do not, for the right to a name. This is the case for several reasons. First, only the large companies have the financial and legal resources to initiate litigation. Second, most small companies do not hold trademarks. They are small businesses with a limited scope and range and do not think they need trademark protection. Third, small businesses will rarely challenge large companies, because of the cost and delay of doing so. Instead, these small businesses will use an alternate name”.
U.S. Small Business Administration Office of Advocacy
Guilty, until proven innocent
Imagine a small business whose name is challenged by a large company who is a trademark holder. This small business is not infringing on the trademark holder’s rights because the name is only vaguely similar, or they operate in different industries and there is no likelihood of confusion. Unfortunately, the small business must defend its name to show that there is no infringement. This process is expensive and can make decisions based on references to national laws, especially problematic if the large company is a multi-national corporation. Also, the court could decide that the small business must pay the fees for the proceeding.
U.S. Small Business Administration Office of Advocacy
