We've Had Patent Trolls And Copyright Trolls… So Why Not Trademark Trolls?

Too Much Free Time

from the this-ought-to-be-fun dept

Most folks have heard about “patent trolls” (even if the name is in dispute) and generally associate it with companies that don’t do anything other than threaten/sue over patents. Then, we had stories about music copyright trolls, who were gaining the rights to songs (though, in some cases there was evidence that these copyrights were gained through highly questionable means). So, it was really only a matter of time before we got “trademark trolls,” as well. To be honest, we’ve had a few stories about a guy named Leo Stoller, who has been dubbed a trademark troll after registering trademarks on all sorts of common words and then insisting no one could use those words without paying.

However we hadn’t seen much evidence of “professional” trademark trolls until alerted to this story by Eric Goldman. Basically, it’s a story about an auction site for guns that went to court to ask for a declaratory judgment against gun maker Heckler & Koch (HK). But perhaps the more interesting party is a company called Continental Enterprises (CE). GunBroker apparently received a letter from CE claiming trademark (and copyright) infringement because certain HK guns were up for auction on the GunBroker’s site.

Of course, it’s difficult to see how GunBroker has any direct liability. First, accurately listing a product for sale isn’t likely to be found as infringing (i.e., if I own a Apple iPod and list it for sale as “Apple iPod for sale” that’s not a violation of Apple’s trademark). Second, since all of the complaints were apparently for user listings, it’s hard to see how GunBroker is liable. The copyright claims, one assumes, would get tossed out on a DMCA safe harbor review. Unfortunately trademarks appear to be something of a loophole, in that they’re not really covered by the DMCA or CDA safe harbors. However, common sense should take care of the fact that it’s not GunBroker doing the infringing.

But the post goes on to highlight some additional questions about CE, including a link to a web page that dissects how CE apparently operates, and it sounds quite similar to a typical “trolling” sort of operation. According to the various websites, CE contracts with companies/law firms to act as “representatives” for trademark holders, and then goes searching for “anything they can remotely claim is infringing.” Then, it sends a threatening letter, demanding compensation, even if there’s no actual infringement. Apparently CE gets a cut of any money it squeezes out of companies, so it has plenty of incentive to send out threatening letters even when there’s no infringement whatsoever. Apparently, it’s worked with companies including Heineken, Home Depot, Textron, Bosch, Black & Decker and others. It sounds like these companies are effectively renting out their brands to see if this company can scrape up any companies willing to pay out of fear.

This really isn’t a huge surprise. When you let tools like patents, copyrights and trademarks be regularly abused in the market, it shouldn’t be a surprise when companies are built up around abusing them for profit.

Filed Under: trademark, trademark troll
Companies: continental enterprises