This case highlights how damn weak and nearly worthless our anti-SLAPP laws are. They're really just another way for attorneys on BOTH sides to profit from abusive litigation.
California supposedly has one of the best anti-SLAPP laws in the country, but it's barely a deterrent because it only awards attorney's fees and costs, and provides zero damages to the actual victims of SLAPP suits (and no penalties against attorneys who file SLAPP suits!). What kind of deterrent or solution is zero compensation for the victims? As Mike points out, "the fight itself is incredibly distracting and burdensome."
To be a truly effective deterrent, anti-SLAPP laws must include significant damages against SLAPP suit filers AND their unethical and predatory attorneys. Possibly having to pay attorney's fees and costs is just the cost of doing business for a deep-pocketed SLAPP suit filer. It also means that the SLAPP suit victim has to risk paying their attorneys upfront, or be able to find an attorney who is willing and able to take the case on contingency hoping to win and get paid sometime down the road.
Below is a list of some of Entrepreneur magazine's recent efforts to monopolize the word "entrepreneur" at the USPTO. But most, if not all, of these entrepreneur-related trademarks have already been REVIEWED and APPROVED by the USPTO's trademark examining attorneys (Note: over 95% of federally registered or pending entrepreneur-related trademarks are NOT owned by Entrepreneur magazine!):
1. VENTUREPRENEUR (For: Providing business research and Educational services) 2. PREDICTIVE ENTREPRENEUR (For: Education services) 3. ENTREPRENEUR IN LOVE (For: Consulting in the field of personal relationships) 4. THE PHILANTREPRENEUR (For: Educational and entertainment services) 5. THE SMART ENTREPRENEUR (For: books, business seminars, MP3 files, etc) 6. ENTERTAINEUR (For: blogs featuring information on entertainment, entrepreneurship, and law, etc) 7. ENTREFEMMEUR (For: website featuring articles and discussions about women's careers and entrepreneurship) 8. M ENTREPRENEURLAND (For: Business consulting services) 9. EVOLVING ENTREPRENEUR (For: Business education and training services) 10. ENTREPRENEURS' GUIDING PRINCIPLES FOR SUCCESS (For: Education and entertainment services) 11. THE LONELY ENTREPRENEUR (For: series of books and written articles in field of entrepreneurism) 12. CLUB ENTREPRENEUR (For: Incubation services) 13. THE 10% ENTREPRENEUR (For: Education services, Books in field of entrepreneurship) 14. ENTREPRENEUR'S PLANNER (For: daily, weekly, and monthly paper planners and diaries)
Not only is the USPTO too willing to grant federal trademarks on common generic terms (i.e. "entrepreneur"), the USPTO refuses to go after companies that make fraudulent statements to get or keep trademarks.
The USPTO refuses to do anything even though companies submit declarations acknowledging that making willful false statements to the USPTO is "punishable by fine or imprisonment, or both, under Section 1001 of Title 18 of the United States Code."
For example, the USPTO has known for years that trademark bully Entrepreneur magazine gets and keeps trademarks by making willful false statements (including using the alias of "Chase Revel" to hide extensive criminal history of the mag's founder, and also submitting false specimens).
But the USPTO refuses to go after Entrepreneur magazine's fraudulently acquired and maintained trademarks.
NOTE: Entrepreneur magazine is so fraudulent, that they have to continue their use of aliases to attack highly accurate comments about their fraudulent trademarks!
However, to be a truly effective deterrent, anti-SLAPP laws most do more than include attorneys fees and expenses. They must also include meaningful penalties, including significant monetary sanctions payable to the victims of SLAPP suits.
Deep-pocketed people like Trump are not deterred by (maybe) having to pay attorneys fees and expenses. They consider that the cost of doing business.
And while it's helpful that a SLAPP suit victim can get their attorneys fees and expenses paid, they still end up being uncompensated for all the time and stress caused by the SLAPP suit.
Why should only the attorneys on both sides get paid in a SLAPP suit?
In fact, anti-SLAPP laws should also include significant sanctions against attorneys who file SLAPP suits. That could be the best deterrent of all!
Glad to see the FTC is continuing to report on and put pressure on patent trolls. However, why is the FTC (and other govt agencies such as the USPTO), largely ignoring the also massive problem of trademark bullying (i.e. Entrepreneur magazine's attacks against entrepreneurs that use the common and generic word "entrepreneur" - a word that predates the magazine by at least 150 yrs)?
Businesses are probably more likely to get dragged into a trademark dispute than a patent dispute. Every business that uses its name or the name of its products or services in commerce, is at risk of being unfairly accused of trademark infringement by a trademark bully.
RE: "Twitpic does not need a registered trademark in order to stay in business. It has no need to fight Twitter on this, and if its concern is the legal fees, why not just drop the whole trademark application. Registered trademarks have some uses, but common law trademarks are nearly as powerful for most important cases."
Good points Mark, but possibly oversimplified. I agree that Twitpic's explanation is lacking. But Twitpic dropping its trademark application may not end this dispute. Since Twitter is fighting Twitpic's federal trademark application, Twitter is also probably against Twitpic's common law trademark rights/claims. As a result, Twitter could be threatening to file a trademark infringement lawsuit against Twitpic that seeks profits, damages and atty's fees. Such a legal battle could drag on for years, and would be hugely expensive and very risky for Twitpic, and could easily put Twitpic in a bet the farm position. So since it sounds like Twitpic's business is already headed south anyway, Twitpic may have decided screw all that legal crap, let's just close up shop now and move on.
Gene, all though it was implied, to be clear, would you be willing to provide "pro bono" representation? That way you could fight back and defend your work and reputation, prove your innocence, discourage future bullying attacks against yourself and ipwatchdog.com, showcase your legal skills, and defeat an IP bully - all at the same time and w/out having to risk your own (ass)ets! And if you prevail, you would likely get lots of well-deserved international attention, both in the media and in the legal community (and as a result, a ton of new clients). The headline could be "IP Watchdog Defeats IP Bully!"
And if Gene is unwilling or unable to jump on this offer, are there ANY other IP attorneys out there who will? If not, why not? The best way to defeat and discourage IP bullying, is to stand up to it. So if no IP attorneys are willing to do that, then you should stop pretending you care about this problem and bellyaching about it. Because by refusing to do anything about it, you are knowingly condoning it.
Unfortunately, but not surprisingly, not a single IP attorney has commented about the realities of why Gene, a highly experienced IP attorney, chose to immediately comply with WIPO's letter instead of fight back.
The reason of course is that IP attorneys know how prohibitively expensive, risky, time-consuming, and emotionally draining it is to fight back against an IP bully - even if the facts are clearly in your favor. Plus, IP attorneys dream of landing these types of cases so they can have a cash cow of a client for many, many years. What better way to pay for their kids' law school tuition?
My non-attorney guess is that it could easily cost more than $500,000 and several stressful years for Gene to fully fight this battle. Worse yet, even if he ultimately prevailed, it's unlikely he would ever be compensated for all that time and money. Ouch!
But will any IP attorneys please estimate what you believe this case could have cost Gene had he been able to afford to fight back? Techdirt allows you to post as "Anonymous Coward," so hopefully at least one IP attorney will be noble enough to anonymously share their firsthand knowledge about the high costs of fighting back against IP bullies.
Scott scott -at- bizstarz -dot- com
P.S. It's also quite telling and disappointing that even an "IP watchdog" is unable to defend itself against an IP bully. And doesn't Gene's decision to flee instead of fight signal that all someone has to do to get him to immediately remove content they disagree with from ipwatchdog.com, is simply have a law firm send him a threatening cease-and-desist letter? Won't that have a serious chilling effect on ipwatchdog.com and similar websites and blogs?
As good as this article is, it still misses the larger, more important societal issue: only deep-pocketed organizations and individuals can afford to hire IP attorneys and fight back against IP bullies.
Gene's hip replacement may be a big deal, but that's not preventing him from fighting back. He immediately caved to WIPO's threats because he cannot afford to hire an attorney. But like other IP attorneys, Gene doesn't want others, especially his clients, to know that he cannot afford the same services he charges others huge sums for (he even refused to post my comments on his ipwatchdog.com article about his situation with WIPO).
Gene continues to research and write lengthy ipwatchdog.com articles, so his hip replacement recovery obviously isn't preventing him for responding to WIPO's letter. Again, it's the absurdly high cost and risks that is preventing him from fighting back.
Gene's unfortunate situation reminds me how hypocritical IP attorneys and bloggers were about the USPTO's report on trademark bullies a few years ago. Most, if not all, tried to whitewash the problem and actually claimed there are already sufficient legal remedies available to deal with IP bullies. Hmm, then why isn't Gene making use of any of these so-called legal remedies against WIPO? He isn't because they are woefully insufficient.
So while I wish Gene well in his recovery and potential battle against WIPO, I also wish he had been more forthcoming about his reasons for immediately caving in to WIPO's demands.
The best way to deal with IP bullies, is to come up with a solution that helps everyone deal with IP bullies, not just Gene because he blogs about IP law and so happens to know lots of IP attorneys who understandably want to help out one of their own.
I also doubt that Gene or any other IP attorney will be able to credibly (or nicely) challenge my take on why IP Watchdog swiftly backed down to a letter from WIPO. But you are encouraged to do so if you can do so in a way that also helps others fight back against IP bullies.
I'm not trying to pile on Gene, and hopefully his hip replacement recovery is going well. But I forgot to mention the obvious...if he's confident he did nothing wrong, and it appears that he didn't, then why doesn't Gene simply do what he'd certainly advise anyone else to do, and HIRE AN ATTORNEY?
My guess is because like many attorneys, he can't afford to pay what he gladly charges others. Plus he knows that even if he prevailed, it's unlikely he'd get back his attorneys fees. In other words, he knows that typically the only one who "wins" these types of legal battles, are the attorneys, not the clients.
Re: "Quinn has chosen not to fight this, taking down his post and the associated documents, noting that while he believes in the First Amendment, he's currently recovering from hip replacement surgery and is in no condition to take on this sort of fight at the moment."
First of all, I am totally against WIPO's actions to intimidate Gene Quinn and others from reporting on WIPO's scandals. However, isn't this the same Gene Quinn who angrily reacts whenever it's pointed out how biased and dismissive he his when others point out how much damage trademark and other IP bullies are inflicting on individuals and orgs too small or intimidated to fight back? Funny how he meekly reacts when the shoe is on the other foot.
I realize hip replacement surgery is no picnic, but has Gene ceased all legal work because of it? Perhaps, but I'm guessing that hip replacement surgery or not, Gene would have folded instead of fighting. Because as an IP atty, he knows firsthand how unreasonably expensive and risky it is for individuals and small orgs to fight back against IP bullies.
In other words, like many attys and critics of those trying to stop the proliferation of IP bullies, Gene appears to be a hypocrite. But hopefully this experience will change his and the opinions of others who protect and defend IP bullies.
But as Upton Sinclair famously said: "It is difficult to get a man to understand something, when his salary depends on his not understanding it."
Thanks to Mike and Techdirt for their stories about trademark bully Entrepreneur Magazine's "despicable" attacks against entrepreneurs that use the word entrepreneur.
For the record, I filed "pro se" because like probably 99% of all individuals and small biz owners, I cannot afford $250,000 or more for a law firm. Also beware of Entrepreneur magazine shills abusing Techdirt's reader comments system with hate-filled rants and personal attacks that will be anonymously posted or using fake names (ironically, Entrepreneur magazine was started by a convicted bank robber using one of his numerous fake names!). People under the intense pressure of trying to cover-up years of blatantly defrauding a federal agency can get very desperate and angry. What you won't see from these shills is credible proof that Entrepreneur magazine ever produced any of their so-called "Entrepreneur Expo" or "small business expo" events during the time-frame in question, and possibly not since the 1990s.
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