A company’s intellectual property – whether it’s a patent for an invention or a trademark for a logo – is often the company’s most valuable asset. Not surprisingly then, many companies go to great lengths to protect their intellectual property and prevent others from using or abusing it. Some companies, however, have gone so far to protect their IP rights that they’ve earned themselves a nickname: “trademark bullies.”
Two large US companies illustrate the behavior of trademark bullies. Under Armour, the multi-billion dollar sportswear company, has dozens of trademarks, and it’s willing to spend a lot of money to defend them. In particular, it has filed many lawsuits against companies that use the word “armor” in their names. It drew attention last year when it sued a small company called Armor & Glory, which sells sportswear with Christian slogans. Under Armour’s suit demanded that Armor & Glory destroy all its products, relinquish its domain name, turn over all its profits from the products, and pay attorneys’ fees and damages in excess of $100,000. This would seem a tall order, considering Armor & Glory has generated less than $100,000 in revenue since 2013.
Second, in a case ripe for puns, Monster Beverages filed a trademark infringement claim with the U.S. Trademark Trial and Appeal Board (the “TTAB”) against MonsterFishKeepers, an online forum for enthusiasts of large fish. Monster Beverages (the $28 billion energy-drink goliath, owned partially by Coca-Cola) has been particularly aggressive in protecting its trademarks; it filed more claims with the TTAB in 2015 than any other company. It’s gone after a brewery for calling a beer “Beast from the East,” a Mexican restaurant for selling “Monster Kong Nachos,” and a winery for having a name – Dassault – that is only one letter away from Monster’s “Monster Assault” beverage. So it was entirely in keeping with Monster Beverages’ M.O. to take action against even a small fish (or rather, a small monster fish) like MonsterFishKeepers.
Usually, when big companies file trademark actions against small companies, the small companies quickly capitulate, knowing that they are likely to go bankrupt from legal fees before they can win the case. Fees for cases like this can easily exceed $100,000. Armor & Glory launched a crowd-funding campaign to raise money for its defense and the case settled in April 2016 pursuant to undisclosed terms. MonsterFishKeepers, however, took a different tact. The owner, who knew he couldn’t afford a lawyer to defend against Monster Beverages, instead took his case to the Suffolk University Law School’s Intellectual Property & Entrepreneurship Clinic. The pro bono clinic, which is supervised by an experienced attorney and staffed by third-year law students, spent almost four years battling Monster Beverages’ attorneys. Finally, earlier this year, the TTAB bestowed a significant victory on the small fish. Although MonsterFishKeepers was denied a trademark on its logo, which the Board determined looked too much like the Monster Beverages logo, the Board did allow MonsterFishKeepers to keep the term “monster” in its name.
The MonsterFishKeepers victory is evidence that at least some of the trademark claims made by giant businesses are without merit and can unfairly harm small businesses. The case also demonstrates that it is possible for the small business to win; unfortunately, many small businesses would probably not even try. The TTAB does not award attorneys’ fees or damages, so a business with limited resources is unlikely to defend a claim brought there. MonsterFishKeepers could not have fought this monster – much less won – without free legal services. Fortunately, there are organizations like the Suffolk Law IP clinic, and as long as the trademark bullies continue to run rampant, there will be no shortage of cases for them to take on.