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Abstract

Trademark bullying has become a persistent problem, with large companies intimidating smaller entities with cease and desist campaigns and achieving anti-competitive results. A number of tactics exist to deal with bullying behavior. One of them is the imposition of judicial sanctions, but the standards in that area are unclear and the defendants often do not have the financial means to engage in litigation at all. Other, extralegal measures such as shaming have shown some success, but also present numerous drawbacks and prove insufficient when used against powerful actors. This symposium contribution proposes a new model that draws on the existing functions of the Patent & Trademark Office (PTO) to stem the indiscriminate sending of cease and desist letters by large trademark holders and incentivizes them to file their claims with the PTO under certain conditions. This solution seeks to guard the interests of legitimate victims of infringement while balancing their rights with the need to protect smaller entities from the threat of ruinous litigation. If the PTO could make preliminary determinations about the validity of infringement claims, trademark owners could record evidence of policing while being discouraged from making frivolous claims.

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