Trademark Bullying: Birth of a TTAB Affirmative Defense?
The USPTO's recent request for comments regarding trademark bullies [TTABlog posting here] has set tongues wagging and minds turning. TTAB veteran Jack Clifford recently posed a new version of the "unclean hands" affirmative defense in Kellogg North America Company v. Malt-O-Meal Company, Opposition No. 91196938: trademark bullying.
Kellogg opposed Malt-O-Meal's application to register the mark FROSTED TUMBLE WHEATS for breakfast cereal, claiming likelihood of confusion with its registered marks FROSTED MINI-WHEATS, MINI-WHEATS, and MINI-WHEATS LITTLE BITES for cereal products.
Malt-O-Meal's answer includes the following allegations in its Affirmative Defenses:
5. Opposer has engaged in a practice of "trademark bullying" which is described as trademark owner that uses its trademark rights to harass and intimidate another business beyond what the law might reasonably interpreted to allow.
6. According to research published by "TTAB Across the Board" [See TTABlog posting here], Opposer filed the most TTAB proceedings and extensions of time to oppose requests with the TTAB in 2009, and Opposer's trademark portfolio is far smaller than that of many others.
7. Opposer has previously opposed a large number of applications filed by Applicant where the grounds of the opposition were dubious, weak, or exaggerated. Opposer is attempting to unfairly raise the cost of entry for Applicant to compete in the marketplace by filing this and other groundless oppositions with the TTAB.
8. The longstanding and habitual practice of trademark bullying engaged in by the Opposer gives the opposer unclean hands and bars relief to Opposer.
9. Applicant is a small business that is harmed by Opposer's litigation tactics wherein Opposer attempts to enforce its alleged trademark rights beyond a reasonable interpretation of the scope of the rights legitimately granted to the trademark owner.
Let's keep our collective eye on this one. Of course, what one party sees as "bullying," the other sees as "necessary policing efforts." Let's see how the TTAB sees it.
Text Copyright John L. Welch 2010.