Trademark Bullying: A Concept That Should Not Be Kept Hidden

When a particular company registers a trademark for their brand, he would get recognition, the customers would finally able to pick their product out of a line-up and there is a potential for growth. However, there have been some instances when this company takes trademark enforcement measures to at times, “Bully” a budding company. In such cases, the companies tend to put forward a legal notice that takes advantage of the convoluted nature of established trademark laws and “harassing” the budding ventures. 

Take the case of Green the Map for instance:

When it first started in 2009, Green the map was known as green the gap. The idea behind this company is a beautiful one, to recycle products and create something beautiful.  The idea was to recycle the trash into clothes, shoes, purses and other necessities. It became a huge success in almost the entire nation. However, this was short lived as back in 201, an American company called GAP served a legal notice to it alleging trademark infringement. Now GAP happens to be a world-renowned clothing store that started back in 1969 and has quite a competitive spirit. However, that also means that associating the term “GAP” with any type of apparel store is exclusively the right of the aforementioned store. The result of the suit did not have a happy ending, as the owners of Green, the gap had to change the name from Green the Gap to Green the Map in 2013.

While some would argue that the above course of action taken by the global clothing store was warranted due to the following arguments:

1. GAP is already a world-renowned store with over 3000 of them all over the world; the word has sort of becoming synonymous with clothing in general.
2. When a trademark is registered, the same wordmark is not allowed to be used in any shape or form by anyone else outside.

There are still reasons that it might be considered bullying for the following reasons:

1. The word “Green the Gap” supposedly had no intention to infringe on the global clothing store. In fact, the idea behind the name was to fill the space in between with green. The name does signify a meaning, but it was not the “serious concern” that the representatives of GAP seemed to think. The end goods and services were drastically different in many facets.
2. The nature of the business was totally different. While there was a cloth selling option online for the budding venture, the primary focus of the company was production through recycling. To that end, the production methods, the approach to business and the significant points of profit were totally different for both.
3. None of the clothing stores were in the country yet. To that end, the intellectual property infringement case was totally unnecessary.
4. Gap’s claim to have the word being synonymous clothing is wrong even from an ethical perspective and was nothing more than the enforcement of trademark laws based on its ubiquitous nature.

The two points that have been mentioned above do entail a lot of weight. However, due to India’s recent proclivity towards being a bit more relaxed towards foreign businesses led to the ultimate name change of an eco-friendly venture which tried to do everything right.  

That being said, the clothing giant did allow the venture to be registered as such, which kind gives rise to a whole lot of confusion.

The misuse of deceptive similarity clause

The mentioned case wasn’t the first case of trademark bullying that has not only occurred but was also successful, and unfortunately, it won’t be the last. Following is the one mentioned rule of deceptive similarity that is a concern when this rule can be interpreted in a lot of forms.  

• Deceptively similar: This law states that “A mark shall be deemed to be deceptively similar with another mark if it so nearly resembles that other mark as to be likely deceived or cause confusion”-Here are the things that are misused:
  
  • If a venture even uses a word mark as a part of a bigger wordmark, this is considered to deceptive in some cases.
  • This case even holds up even if the design of the mark is significantly different.
  • The conglomerates have misused this aspect to restrict several most used terminologies.
  • If the brand is famous and has been famous for a very long time, then this rule can take out pretty much anyone out of the competition.  

However, there are ways to be ready to face such bullying

There have been many instances where the bullying was not successful. Why? It is because some wise start-ups were proactive regarding this matter and you too can use the following ways to be safe in such regards:

1. Make sure that you at least know the outline of the trademark law, as it would be enough to take into account as to whether the infringement allegation put against you is good or not.
2. Take absolute care while you are deciding upon which mark to choose. While the online measure to reach the mark is almost optimal, the “almost” part is a bit worrisome. Therefore, it is necessary to get the assistance of a trademark agent when you can.
3. Make sure that that you have access to a legal assistance team whenever you need it.
4. Make some noise in the media: Most popular companies of the world always are afraid about their public image. Therefore, when the word spreads of bullying, t might compel the bullies to back off.

That being said, it is also necessary to stop the fire from spreading

In all honesty, there is a fine line between a trademark bully and a rightful enforcement of the trademark laws.  Therefore, when there is no way out, you should take the following factors into account:

1. Can the situation be resolved using dialogue?
2. Can you retract/change your trademark without any financial harm?

Stubbornness might help you strive forward in business, but from a legal standpoint, it is definitely a detriment. Therefore, take the above into account before you decide to take any sort of legal action against the “supposed” bullying.

Trademark enforcement VS Trademark Bullying

Many would think that the difference between the enforcement and bullying of a trademark is black and white. That is not the case, however, as the entire circumstance is grey at best.

1. If the company is popular and established, trademark infringement can, in fact, harm the reputation and finances of the said company. In such cases, healthy enforcement is warranted.
2. If the same company is using its monopoly over a particular aspect of the mark and enforce it in the most detrimental way possible, the situation is akin to bullying.

At the end of the day, the bullying aspect of it all is subjective at best. It is because protecting once a brand name is as important as protecting once finances. That being said, the ambiguous nature of the entire discussion has been a subject of constant debate between the experts over the years.