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Each of the 13 federal courts of appeal have their own test for evaluating whether a likelihood of confusion exists between two trademarks. Although the tests are not identical, most of them are substantially similar and use many of the same factors. And the factors are non-exclusive. First Circuit: Eight Pignons Factors The First Circuit considers the eight factors set forth in Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d 482, 487 (1st Cir. 1981). The eight factors are: (1) the similarity of marks; (2) the similarity of the goods (or, in a service mark case, the services); (3) the relationship between the parties’ channels of trade; (4) the juxtaposition of their advertising; (5) the classes of prospective purchasers; (6) the evidence of action confusion; (7) the defendant’s intent in adopting its allegedly infringing mark; and (8) the strength of the plaintiff’s mark. Second Circuit: Eight Polaroid Factors The Second Circuit considers the eight factors set forth in Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir. 1961). The eight factors are (1) strength of the trademark; (2) similarity of marks; (3) proximity of the products and their competitiveness with one another; (4) evidence that the senior user may bridge the gap by developing a product for sale in the market of the alleged infringer’s product; (5) evidence of actual consumer confusion; (6) evidence that the imitative mark was adopted in bad faith; (7) respective quality of the products; and (8) sophistication of consumers in the relevant market. Third Circuit: Ten Lapp Factors The Third Circuit considers the ten factors set forth in Interpace Corp. v. Lapp, Inc., 721 F.2d 460, 463 (3d Cir. 1983). The ten factors are (1) the degree of similarity between the owner’s mark and the alleged infringing mark; (2) the strength of the owner’s mark; (3) the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase; (4) the length of time the defendant has used the mark without evidence of actual confusion arising; (5) the intent of the defendant in adopting the mark; (6) the evidence of actual confusion; (7) whether the goods, though not competing, are marketed through the same channels of trade and advertised through the same media; (8) the extent to which the targets of the parties’ sales efforts are the same; (9) the relationship of the goods in the minds of consumers because of the similarity of function; and (10) other facts suggesting that the consuming public might expect the prior owner to manufacture a product in the defendant’s market, or that he is likely to expand into that market. Fourth Circuit: Pizzeria Uno/Sara Lee Nine Factors The Fourth Circuit considers nine factors in determining likelihood of confusion: (1) the strength or distinctiveness of the plaintiff’s mark as actually used in the marketplace; (2) the similarity of the two marks to consumers; (3) the similarity of the goods or services that the marks identify; (4) the similarity of the facilities used by the markholders; (5) the similarity of advertising used by the markholders; (6) the defendant’s intent; (7) actual confusion; (8) the quality of the defendant’s product; and (9) the sophistication of the consuming public. George & Co., LLC v. Imagination Entm’t Ltd., 575 F.3d 383, 393 (4th Cir. 2009). The first seven factors were set forth Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 1527 (4th Cir. 1984). The last two factors were added in Sara Lee Corp v. Kayser-Roth Corp., 81 F.3d 455, 463-64 (4th Cir. 1996). Fifth Circuit: Eight Factors The Fifth Circuit uses eight factors: (1) strength of the plaintiff’s mark; (2) similarity of design between the marks; (3) similarity of the products; (4) identity of retail outlets and purchasers; (5) similarity of advertising media used; (6) the defendant’s intent; (7) actual confusion; and (8) degree of care exercised by potential purchasers. Am. Rice Inc. v. Producers Rice Mill, Inc., 518 F.3d 321, 329 (5th Cir. 2008). Sixth Circuit: Eight Frisch’s Factors The Sixth Circuit uses the eight factors set forth in Frisch’s Rest., Inc. v. Shoney’s Inc., 759 F.2d 1261, 1264 (6th Cir. 1985). The Frisch factors are (1) strength of the plaintiff’s mark; (2) relatedness of the products; (3) similarity of the marks; (4) evidence of actual confusion; (5) parties’ marketing channels; (6) likely degree of purchaser care; (7) defendant’s intent in selecting the mark; and (8) probability that the product lines will expand. Seventh Circuit: Seven Factors The Seventh Circuit uses seven factors (appropriately): (1) the similarity between the marks in appearance and suggestion; (2) the similarity of the products; (3) the area and manner of concurrent use; (4) the degree of care likely to be exercised by consumers; (5) the strength of the plaintiff’s mark; (6) any evidence of actual confusion; and (7) the intent of the defendant to palm off his product as that of another. Sorensen v. WD-40 Co., 792 F.3d 712, 726 (7th Cir. 2015). Eighth Circuit: Six SquirtCo Factors The Eighth Circuit considers the following six factors: (1) the strength of the trademark; (2) the similarity between the mark at issue and the alleged infringer’s mark; (3) the degree to which the products compete with each other; (4) the alleged infringer’s intent in using the mark; (5) incidents of actual confusion; and (6) whether the degree of purchaser care can eliminate the likelihood of confusion which would otherwise exist. Lovely Skin, Inc. v. Ishtar Skin Care Products, LLC, 745 F.3d 877, 887-89 (8th Cir. 2014); SquirtCo v. Seven-Up Co., 628 F.2d 1086, 1091 (8th Cir. 1980). Ninth Circuit: Eight Sleekcraft Factors The Ninth Circuit uses the following eight factors: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the marketing channels used; (6) the type of goods and the degree of care likely to be exercised by the purchaser; (7) the defendant’s intent in selecting the mark; and (8) the likelihood of expansion of the product lines. AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir.1979). Tenth Circuit: Six Factors The Tenth Circuit uses the following six factors: (1) the degree of similarity between the marks; (2) the intent of the alleged infringer in using the mark; (3) evidence of actual confusion; (4) similarity of products and manner of marketing; (5) the degree of care likely to be exercised by purchasers; and (6) the strength or weakness of the mark. Sally Beauty Co., Inc. v. Beautyco, Inc., 304 F.3d 964, 972 (10th Cir. 2002) (citing King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089-90 (10th Cir. 1999)). Eleventh Circuit: Seven Factors The Eleventh Circuit uses the following seven factors: (1) the strength of the plaintiff’s mark; (2) the similarity between the plaintiff’s mark and the allegedly infringing mark; (3) the similarity between the products and services offered by the plaintiff and defendant; (4) the similarity of the sales methods; (5) the similarity of advertising methods; (6) the defendant’s intent, e.g., does the defendant hope to gain competitive advantage by associating his product with the plaintiff’s established mark; and (7) actual confusion. Alliance Metals, Inc., of Atlanta v. Hinely Indus., Inc., 222 F.3d 895, 907 (11th Cir. 2000) D.C. Circuit: Seven Factors The District of Columbia District Court uses the following seven factors: (1) the strength of the plaintiff’s mark; (2) the degree of similarity between the two marks; (3) the proximity of the products; (4) evidence of actual confusion; (5) the defendant’s purpose or reciprocal good faith in adopting its own mark; (6) the quality of defendant’s product; and (7) the sophistication of the buyers. Globalaw Ltd. v. Carmon & Carmon Law Office, 452 F. Supp. 2d 1, 48 (D.D.C. 2006). It does not appear that the D.C. Circuit has adopted a test yet. Federal Circuit: 13 DuPont Factors The Federal Circuit uses the 13 DuPont factors: (1) The similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression; (2) The similarity or dissimilarity and nature of the goods or services as described in an application or registration or in connection with which a prior mark is in use; (3) The similarity or dissimilarity of established, likely-to-continue trade channels; (4) The conditions under which and buyers to whom sales are made, i.e. “impulse” vs. careful, sophisticated purchasing; (5) The fame of the prior mark (sales, advertising, length of use); (6) The number and nature of similar marks in use on similar goods; (7) The nature and extent of any actual confusion; (8) The length of time during and conditions under which there has been concurrent use without evidence of actual confusion; (9) The variety of goods on which a mark is or is not used (house mark, “family” mark, product mark); (10) The market interface between applicant and the owner of a prior mark; (11) The extent to which applicant has a right to exclude others from use of its mark on its goods; (12) The extent of potential confusion, i.e., whether de minimis or substantial; and (13) Any other established fact probative of the effect of use. In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (C.C.P.A. 1973). However, when reviewing trademark infringement over which it does not have exclusive jurisdiction, the Federal Circuit uses the law of the applicable Circuit. Bandag, Inc. v. Al Bolser’s Tire Stores, Inc., 750 F.2d 903, 909 (Fed. Cir. 1984).

In the current era, intellectual property rights play a critical role in international trade. They are a must-have for entrepreneurs from all walks of life who want to avoid stumbling blocks and gain the benefits of their labours. “To protect the most basic manifestations of one’s creativity, trademarks with a global application are essential.” Because a pictorial representation of one’s innovation is required regardless of the previously mentioned concerns, trademarks have been made available to individuals of all classes and are not limited to a specific stream or business, it is important to protect a trademark. Nowadays, trademark trolls are being employed to take advantage of trademark rights in order to gain unauthorised profits. Trademark Trolls is a legal term that refers to the practise of filing frivolous trademark registration applications with no intention of using them. It is a method of exploiting legitimate parties in order to extract money by filing lawsuits as a way of initiating settlement negotiations or obtaining licences from trademark holders. What’s more alarming is that there is no specific legislation or rule that renders “trademark trolling” illegal.

Trademark law regulates brand names that populate the marketplace, including Google, Apple, and Facebook.55 U.S. Trademark law provides protection to both registered and unregistered marks56 and was developed to (1) incentivize producers to invest in quality; (2) reduce transaction costs, such as consumer search costs, and (3) promote free competition in business and trade.57 A trademark can be “any word, name, symbol, or device, or any combination thereof […] used by a person […] to identify and distinguish his or her goods, including a unique product, from those manufactures or sold by others and indicate the source of the goods, even if that source is unknown.”58 Thus, trademarks may include words (i.e. “Apple,” “Google,” or “Facebook”), phrases (i.e., Apple’s “Think Different” slogan or Google’s “The Web is What You Make of It”), colors (i.e., UPS’s brown UPS trucks or TMobile’s use of the magenta color),59 sounds (i.e., “Google Dynamic Virtual Surround” software for audio and surround sound), scents (i.e., “FLOWERY MUSK SCENT” in Verizon stores),60 textures (i.e., textures of wines), motions, building exteriors and interiors, product shapes (i.e., Apple’s assertion over iPhone shape),61 or product packaging (i.e., Coca Cola’s bottle packaging). Trademarks serve to lower consumer search costs and incentivize producers to produce “consistent levels of product quality” by allowing consumers to identify the source of the goods or services.62 When a consumer sees a product with a trademark, the consumer is able to identify that the product is made by a particular source, which enables the consumer to decide whether he or she liked or disliked “other similarly marked items” in the past.63 Trademarks are valuable because they allow businesses to cultivate their brands and goodwill (or reputation relating to its products and/or services).64 For example, if a trademark owner provides an inconsistent level of quality, consumers may be less incentivized to purchase the products, which reduces the overall value of the trademark.

Finally, despite finding that the plaintiff failed its burden of proving the first prong of the trademark analysis, ownership of a valid mark, the court continued to apply the seven-factor likelihood of confusion test.157 Stoller argued that the ‘378 registration, although did not include baseball bats, was sufficiently strong and related to baseball bats to cause likelihood of confusion.158 The district court, however, found that the application of the likelihood of confusion test weighed overwhelmingly in the defendants favor.159 After assessing the parties’ respective arguments, the district court granted the defendant’s motion for summary judgment.160 In granting the defendant’s motion, the court also took two steps seemingly outside of the norm of trademark litigation: the court ordered the plaintiff to pay the defendant’s attorneys’ fees and costs and ordered the cancellation of the plaintiff’s 249’ registration.161 First, by invoking the court’s power to order the cancellation of a mark pursuant to 15 U.S.C § 1119, the court went beyond what was absolutely required in order for justice to be served in this case. The defendant’s argued that because they were the senior users of the STEALTH mark, the plaintiff’s continued registration of the STEALTH mark for the same goods, baseball bats, violated 15 U.S.C. 1052(d).162 This section states that a mark may be cancelled if it “[c]onsists of or comprises a mark which so resembles ... a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when used on or in connection with the goods of the applicant, to cause confusion, or to cause mistake, or to deceive.”163 Because the defendant’s were the first to use the STEALTH mark and the ‘249 Registration claimed baseball bats, the same goods the defendant’s sold using the mark, sufficiently likelihood of confusion justified cancellation of the ‘249 registration.164 Accordingly, the district court ordered the cancellation of the ‘249 registration.165 Second, the award of attorney’s fees under the Lanham Act is reserved only for those “exceptional” cases; thus, it is unlikely that a court will award attorneys fees in trademark litigation. A discussion of the award of attorneys’ fees and costs is discussed in Section VI infra.

As one of the countless millions of people who were freed or protected from totalitarianism by the United States of America, it is easy for me to talk about the past. To talk about the belief of the American people and their leaders that this country was exceptional, and had special responsibilities to match its tremendous power. That a nation founded on freedom was bound to defend freedom everywhere. I could talk about the bipartisan legacy of this most American principle, from the Founding Fathers, to Democrats like Harry Truman, to Republicans like Ronald Reagan. I could talk about how the American people used to care deeply about human rights and dissidents in far-off places, and how this is what made America a beacon of hope, a shining city on a hill. America led by example and set a high standard, a standard that exposed the hypocrisy and cruelty of dictatorships around the world. But there is no time for nostalgia. Since the fall of the Berlin Wall, the collapse of the Soviet Union, and the end of the Cold War, Americans, and America, have retreated from those principles, and the world has become much worse off as a result. American skepticism about America’s role in the world deepened in the long, painful wars in Afghanistan and Iraq, and their aftermaths. Instead of applying the lessons learned about how to do better, lessons about faulty intelligence and working with native populations, the main outcome was to stop trying. This result has been a tragedy for the billions of people still living under authoritarian regimes around the world, and it is based on faulty analysis. You can never guarantee a positive outcome— not in chess, not in war, and certainly not in politics. The best you can do is to do what you know is right and to try your best. I speak from experience when I say that the citizens of unfree states do not expect guarantees. They want a reason to hope and a fighting chance. People living under dictatorships want the opportunity for freedom, the opportunity to live in peace and to follow their dreams. From the Iraq War to the Arab Spring to the current battles for liberty from Venezuela to Eastern Ukraine, people are fighting for that opportunity, giving up their lives for freedom. The United States must not abandon them. The United States and the rest of the free world has an unprecedented advantage in economic and military strength today. What is lacking is the will. The will to make the case to the American people, the will to take risks and invest in the long-term security of the country, and the world. This will require investments in aid, in education, in security that allow countries to attain the stability their people so badly need. Such investment is far more moral and far cheaper than the cycle of terror, war, refugees, and military intervention that results when America leaves a vacuum of power. The best way to help refugees is to prevent them from becoming refugees in the first place. The Soviet Union was an existential threat, and this focused the attention of the world, and the American people. There existential threat today is not found on a map, but it is very real. The forces of the past are making steady progress against the modern world order. Terrorist movements in the Middle East, extremist parties across Europe, a paranoid tyrant in North Korea threatening nuclear blackmail, and, at the center of the web, an aggressive KGB dictator in Russia. They all want to turn the world back to a dark past because their survival is threatened by the values of the free world, epitomized by the United States. And they are thriving as the U.S. has retreated. The global freedom index has declined for ten consecutive years. No one like to talk about the United States as a global policeman, but this is what happens when there is no cop on the beat. American leadership begins at home, right here. America cannot lead the world on democracy and human rights if there is no unity on the meaning and importance of these things. Leadership is required to make that case clearly and powerfully. Right now, Americans are engaged in politics at a level not seen in decades. It is an opportunity for them to rediscover that making America great begins with believing America can be great. The Cold War was won on American values that were shared by both parties and nearly every American. Institutions that were created by a Democrat, Truman, were triumphant forty years later thanks to the courage of a Republican, Reagan. This bipartisan consistency created the decades of strategic stability that is the great strength of democracies. Strong institutions that outlast politicians allow for long-range planning. In contrast, dictators can operate only tactically, not strategically, because they are not constrained by the balance of powers, but cannot afford to think beyond their own survival. This is why a dictator like Putin has an advantage in chaos, the ability to move quickly. This can only be met by strategy, by long-term goals that are based on shared values, not on polls and cable news. The fear of making things worse has paralyzed the United States from trying to make things better. There will always be setbacks, but the United States cannot quit. The spread of democracy is the only proven remedy for nearly every crisis that plagues the world today. War, famine, poverty, terrorism–all are generated and exacerbated by authoritarian regimes. A policy of America First inevitably puts American security last. American leadership is required because there is no one else, and because it is good for America. There is no weapon or wall that is more powerful for security than America being envied, imitated, and admired around the world. Admired not for being perfect, but for having the exceptional courage to always try to be better. Thank you.

Americans of all political persuasions are right to be concerned about unchecked social media. Manipulative social media products are robbing children of their social skills, human relationships, and childhood innocence, and our children’s mental health is at a crisis point. Our adversaries are using the online information environment to fundamentally undermine U.S. national security and attempt to weaken our bedrock principles of freedom and self-determination. Our private data is pervasively monitored, sold, and used to suck us in, keeping our attention fixed on social media platforms for profit. Social media platforms push us deeper and deeper into information silos that are not reflective of reality and divide us — at dinner tables, in the workplace, and on Capitol Hill — making political compromise a near impossibility. No democracy can survive such an assault. As an industry, social media is largely unregulated, and social media companies are free of any liability for the harms they cause. Moreover, the rise of next generation artificial intelligence (AI) will make everything that’s bad about social media worse, offering targeted opportunities for tech companies to profit from our addiction while leaving behind swaths of destruction. This isn’t a future technology crisis. It’s happening now. It’s clear the initial promises of social media are now outweighed by the harms. But this crisis can be averted. It’s time for Congress to act with legislation to tip the scale toward citizens by creating commonsense safeguards for social media companies. As a nation, we need a more responsible social media environment that supports and enhances a healthy democracy and civil society. With responsible design and operations, social media technologies can nourish, rather than erode, our society, our well-being, and our democracy. Since Facebook (now Meta) was launched in 2004, it has promised to serve as a new platform to “give people the power to build community and bring the world closer.”1 Within a decade of its creation, Facebook attracted more than a billion users around the world. YouTube, Twitter (now known as X), Instagram (now owned by Meta), TikTok, and others followed, rewarding their investors with trillions of dollars, while promising to unite, inspire, and inform. Today, Meta’s market capitalization is valued at $840 billion, and the market capitalization of Alphabet, the parent company of Google and YouTube, is $1.7 trillion. Combined, these amounts are larger than the gross domestic product (GDP) of nations such as Australia, Canada, and Russia. Today, it is clear that social media has reneged on its promise. Driven by opaque algorithm-based delivery, social media has unleashed systems that are designed to reward division and outrage and undermine our trust in others and views of ourselves. In the absence of responsible safeguards, social media companies have consistently made decisions that maximize profits at all costs, leaving users with broken children, divided communities, and weakened democracies. Democracy in the United States — and around the world — is being undermined by foreign interference and the spread of false information, including deepfakes generated by bad actors, some of whom use artificial intelligence. Democracy only works with a high degree of trust in shared facts and good intentions across the aisle. Social media profits by attacking both of those. Today’s unchecked social media accelerates polarization, amplifies extremism, and challenges the rule of law. In 2016, social media was exploited and weaponized by Russia to influence our elections, fomenting widespread distrust in election results. In the 2020 elections, social media was again used to exacerbate existing tensions within our society. Those who deny the results of free and fair elections continue to cast a long shadow across our political system. Falsehoods about our electoral system have contributed to threats to poll workers and legislation that has politicized, criminalized, and interfered with elections.2 For public servants, harassment and threats have become commonplace. Their workplaces are increasingly dangerous. Content designed to divide and enrage creates toxic wedges within communities, weakening our civic bonds and leading to a generation being raised in a “post-truth” environment. Beyond the United States, social media platforms have fueled conflict resulting in atrocities, including genocide and ethnic cleansing, in Myanmar, Ethiopia, and other corners of the globe. Across the world, democracy is on the decline. Since 2012, when Facebook announced it had reached one billion users, the number of “free” countries that have registered overall declines in political rights and civil liberties has increased, according to the nonprofit research organization Freedom House.3 Social media is lauded for promoting freedom of expression, a hallmark of democracy. But it fails to protect privacy, doesn’t give equal weight to all voices, amplifies the most extreme content, and empowers intimidation and harassment. This cycle can fuel violence, as we saw in the United States on January 6, 2021, when insurrectionists attacked the country and overran the Capitol trying to stop the counting of Electoral College votes. Generative artificial intelligence will exacerbate these harms. Earlier this year, for instance, a deepfake of an explosion at the Pentagon went viral and caused the stock market to dip.4 Our national security is under attack. Social media platforms are porous, making it easier for bad actors to access private information, track users, and spread lies. Russia has expanded its ability to unleash propaganda around the world, promoting its anti-West views on a global stage.5 Its invasion of Ukraine marked an escalation in Russia’s longstanding information operations against open democracies. TikTok, under the influence of the Chinese Communist Party, has access to a vast amount of private data, which can be used in information wars against its adversaries.6 Both internal and external bad actors continue to weaponize social media today to weaken democracy in the United States. Some social media companies continue to generate pages for terrorist groups like ISIS to use, while others direct casual social media users to the pages of extremists through their algorithms.7 Social media companies’ approach to mitigating these problems is ad hoc, at best.

As most people would likely agree based on the staggering figures previously mentioned for the numbers of users, “there’s no denying that the prevalence and importance of social media have grown in the last 15 years, and it’s now vital for business owners who hope to stay competitive, friends who hope to stay connected, and political figures who hope to get elected.”150 He postulates and asks readers to imagine a life without access, and to “[i]magine you were a campaign manager but you were forbidden from using any social media: it would be a massive handicap[,]” because so “many of us probably check Twitter more often than we turn on a faucet in our homes. Yet for something so commonplace in our lives, it is completely devoid of regulatory oversight approaching anywhere near the other utilities we take for granted.”151 Many may think that social media is not a necessity, with which the author agrees, but contends that “neither was electricity 100 years ago, and that became a public utility. I don’t think it’s too much of an imaginative stretch to envision a world where social media become even more essential to daily life[.]”152 His answer, however, is “to bust up Zuckerberg’s monopoly and treat social media as the services they were meant to be: platforms where all are treated equally and fairly, and communities can grow organically[,]”153 where this writer would be more comfortable with amending section 230, finding it liable as a publisher, or judicial precedent in labeling social media as a public forum, but would not disagree with the de-monopolization of such companies. Whether any of these remedies or all should apply in the future, something must change in the law because Emerson and Mill’s prophetic wisdom that speech cannot be barred from the public forum as it would go underground and become more violent and more radical154 has shown to be true: Months of civil unrest have coincided with a significant rise in social media posts critical of police that sometimes are laced with violent themes, including calls to destroy property and attack officers[] . . . report, by the Network Contagion Research Institute (NCRI), which previously has studied right-wing violence from groups such as the “boogaloo boys,” warns that some left-wing groups have embraced similar social media tactics, including memes and humorous catchphrases, to spread their messages and possibly help coordinate offline activity. . . . Comments using anti-police slogans surged nearly 300 percent on Reddit and more than 1,000 percent on Twitter during the unrest triggered by the killing of George Floyd in May, according to the report. It also described the growth of left-wing networks on Facebook, with such groups as Redneck Revolt and the Socialist Rifle Association boasting about 50,000 and 40,000 members, respectively — numbers that still pale in comparison to right-wing communities online. . . . [R]esearchers examined unrest that unfolded in a handful of cities on July 25 to assess how social media might have helped fuel the simultaneous conflict. They found that avowedly anarchist groups posted about the planned protests, organized in solidarity with ongoing demonstrations in Portland, Ore., using such hashtags as #J25, short for July 25. A frequency analysis performed by the researchers found the hashtag in only a small number of tweets, but several of the posts proved influential and had hundreds or thousands of likes, retweets and comments. Some of the left-wing youth collectives that sought to build support for the actions enlisted some of the profane slogans, such as “ACAB,” in their posts on social media. The same groups also helped map out routes and provided real-time alerts about police activity. 155 What is worse, is that the companies know about this trend: “Twitter spokesman Trenton Kennedy said, ‘We welcome the chance to collaborate with external stakeholders on identifying and taking action on attempts to manipulate the conversation on Twitter.’”156. However, Twitter is not alone Facebook spokeswoman Sarah Pollack said, “We’ve taken action against a number of the entities identified in this report through updated policies we announced this summer. We continuously study new trends in terminology, symbols, and memes for connections to offline violence and review organizations to determine whether they should be banned from our platform.”157 IV. REMEDY: HOW TO REPAIR THE ROAD This author is not alone in seeing the hailstorm of articles as necessitating change “with lawmakers on both sides of the aisle saying its liability protections should be pared back. However, they are divided on what reform would look like, with Republicans focusing their criticisms on alleged censorship and Democrats seeking to hold the companies more responsible for misinformation and other harmful content.”158 Both sides of the aisle would seem to understand that this is an issue and worry about online content in the context of free speech,159 which suggests one way to remedy this issue would be to amend section 230. Congress could do something similar to what the UK government has done and write legislation that imposes “a statutory Duty of Care on tech companies to prevent their algorithms [from] harming people.”160 This would allow negligence suits against the companies, which, as noted above, section 230 currently disallows.161 This amendment would allay both fears: protection from censorship and protection from misinformation by allowing the public to bring suit against these private companies for negligence. Such suits would likely satisfy both contentions because, should the public fear information being withheld by private companies, they could bring suit and hold these private companies liable as publishers holding them accountable for any misinformation. One drawback to such an amendment would be what would no doubt result: an onslaught of litigation from those wishing to profit from the deep-pocketed companies. As a result, another remedy would be much simpler: concede that online platforms have become the modern-day public square and shall be treated as a public forum, affording such rights and remedies. Any of these remedies— amending section 230 and creating a duty for these companies, treating them as publishers, or finding the online world to be a public forum—would ensure equal treatment under the law, regardless of one’s perspective—be it wrong, ill-conceived, uninformed, stemming from willful blindness, ignorance, hatred, or the like—because anything else denies the freedom to be wrong— a freedom inherent in the freedom of speech—and, more importantly, the ability to learn from those wrongs as a society. Imagine how different the world would be if people were not allowed to be wrong and to learn and grow: would we have seen the evolution of Dred Scott to Brown v. Board? V. CONCLUSION The First Amendment has limitations. The recent whistleblower, the election controversy, the former President’s lawsuit, the use of platforms to abduct and violate children, and the use to organize city-wide violence, all show that these platforms need reform because they are used as a conduit for the type of violence that would otherwise be limited under Brandenburg, 162 which limits the freedom of speech to the likelihood of inciting imminent illegal activity. The listed examples have such a likelihood. The solution could be to view these platforms as public forums, Congress amending section 230, or holding platforms liable as publishers, but interference must happen before the ideological divide erupts into something catastrophic and irreparable. This need has been realized but not actualized.163 Social media companies cannot escape liability and pervasively control the conversation. Suppression denies growth of thought, allows violence, and disrupts the marketplace of ideas.164 As has been shown throughout, the internet and social media are wildly available and widely relied on. Given the ubiquitous presence of social media, all voices and perspectives should be a part of the conversation, if only to learn from ignorance and to help to erase hate. Controlling information is a dangerous breeding ground for extremist beliefs, which can lead to extremist behavior. If we are truly the land of the free, our policies and conversations must diligently reflect such notions.

Trademark protection and enforcement for Big Tech1 trademark owners in the United States are akin to adhesive tape that holds a cardboard box together to make it more resilient. A box is first assembled by positioning a flat cardboard into a 3D rectangular shape, folding the bottom four flaps, and subsequently adding adhesive tape to provide stability. The builder of the box puts material into the box, encloses it by folding the top four flaps, and then provides a layer of adhesive tape to ensure protection. Big Tech companies have built various “boxes” comprised of their different products and services within their respective markets (i.e., social networking, online search and search advertising, mobile operating system, and U.S. online retail).2 Moreover, Big Tech companies have selected the material or information allowed (o r prohibited) within each box,3 including, but not limited to “fake news,” misinformation, systemic biases, or viewpoints to benefit a handful of profit driven enterprises. Analogous to adhesive tape used to provide stability and protection for the contents of each box, trademark law provides protection for Big Tech brands and their cultivated goodwill among consumers. A trademark can be any “word, name, symbol, or device” that is used by a person or entity to “identify and distinguish his or her goods” as being the source of the product or service.4 When consumers encounter a trademark affixed to a product (or advertising for a service), the trademark allows the consumer to make a mental association between the product (or service) and the source.5 This allows the consumer to ascertain the value or quality of a product prior to purchasing it since the consumer can identify the source as the producer of that product.6 Thus, trademarks play an important economic role in helping consumers identify unobservable features of a trademarked product (i.e., durability, preference, taste, etc.) and incentivizing producers to maintain consistent levels of quality over products or services.7 U.S. Trademark law provides Big Tech with legal tools to vigorously protect their brands and goodwill. Big Tech takes advantage of these legal tools through aggressive and intimidating pre-litigation and litigation tactics, oftentimes, to the detriment of their competitors. Since trademarks can last in perpetuity8 and relatively few constraints are imposed on trademark owners, Big Tech can vigorously enforce its trademarks against alleged infringers indefinitely. This allows Big Tech to provide an extra layer of everlasting protection to Big Tech “boxes” of information within its relevant market.9 Thus, Big Tech uses trademarks as a weapon to create resilient “boxes” that enclose society (i.e., the relevant consuming public within each market) within, thereby creating an echo chamber where consumers are influenced by a select few. This paper discusses how broad U.S. trademark laws adversely impact competition and consumer perceptions relating to Big Tech brands and the quality of goods or services provided. Part I focuses on anticompetitive techniques used by Big Tech to maintain market dominance and monopolization. Part II introduces trademark law and focuses on how Big Tech uses it as a tool to vigorously protect and enforce Big Tech trademarks from infringement by competitors. Part III discusses how Big Tech’s exploitation of trademark law helps Big Tech reinforce its durable market power at significant costs for U.S. consumers.10 This paper is not a blueprint outlining how to break up Big Tech market dominance, but rather, this paper seeks to highlight the significant issues that Big Tech market dominance poses within the trademark realm. Thus, Part IV concludes by addressing potential remedies available in trademark law that would make Big Tech more accountable, or at least limit Big Tech’s power to engage in frivolous trademark litigation. These remedies focus on preventing Big Tech from using trademark law as a tool to maintain monopoly power; however, other remedies to control Big Tech market dominance may include imposing interoperability requirements, imposing nondiscrimination requirements to prevent Big Tech from self-preferencing or restoring antitrust law enforcement. 11

The rise of the Big Tech monopolies The companies that we now refer to as Big Tech – Microsoft, Apple, Amazon, Alphabet, Meta– have grown in different waves of technological development, and their businesses vary greatly in their focus. Big Tech firms deployed monopolisation strategies by: positioning themselves as intermediaries of an immense number of interactions happening online, allowing them to accumulate data like never before; prioritising fast expansion, with an obsession with growth and scale to exploit network effects to keep users locked in; creating moats around their services to ensure no competitor can challenge them; whenever a competitive threat appeared, either buying or killing it (or both) By doing this, each company gained control over specific markets, essentially becoming a gatekeeper that controls access to them and dictates the rules for a large swathe of businesses, public services and communities trapped in their strong gravitational fields. It is not hard to find the source of Big Tech’s monopoly power. We have only to look at rough markers of their control over the key functions of the Internet (Table 1). Big Tech firms control the market for search engines, mobile operating systems, cloud, digital advertising and social media. Google is a stand-out, present and dominant in so many layers of the digital economy, increasingly including the actual physical “stack” that keeps the Internet running : from the deep-sea cables (8.5% of the global cables are owned by Google15) to the data centres that host the cloud. Google also controls the most basic ways people access information online: mobile operating systems (Android) and search engines. If you are online, whether you know it or not, chances are you are using a Google service. Such global indicators of market share are mere indicators. They even disguise some alarming regional and local dynamics. For instance, one might look at Alibaba’s 24% and Amazon’s 13% slices of global ecommerce and think that it is far from being dominant. In fact, it is a standard monopolist’s trick to define the market as widely as possible, then to say “look – we are only a small part of that.' When it comes to ecommerce, due to restrictions on the logistics of retail, trade, and delivery, the relevant markets are more appropriately defined at the national level. Here, we see how Amazon and Alibaba dominate online commerce 16 both reporting incredible market shares in their home bases – Alibaba with 44% of the market in China17 and Amazon with almost 50-55% in the US18. Yet, that is not all, Amazon also holds an incredible share of markets in Germany - where 1 in every 2 euros spent online is processed by Amazon19 - France, Italy, and Spain where between 70 to 90% of all online shoppers use Amazon20

Over the past six months, the world has edged closer to nuclear war than it has been since the Cuban Missile Crisis. The Doomsday Clock is ticking toward midnight. The global power balance has been dramatically reshuffled, and the potential for disastrous miscalculation hasn't been so high in 80 years. The match and fuse for this is instability — an exaggerated sense of U.S. weakness and lack of capability and resolve — that could lead to huge, aggressive military miscalculations and mistakes by our enemies. The Biden administration has set the table for such a catastrophe.

The timing could not be more dangerous. China has changed strategic direction and has been building its nuclear stockpile and delivery systems. China also has continued to develop hypersonic weapons, including stand-off “carrier killers,” space weapons and cyber capabilities to blind opponents’ strategic and conventional systems. Russia has been advertising (mostly for domestic consumption, but nonetheless worrying) its “unstoppable” delivery systems, and has a very capable nuclear stockpile and military. Iran will continue to move forward with building nuclear weapons. Pakistan and India both have significant nuclear capability in an increasingly unstable part of the world. Nuclear-armed North Korea is again assuming a more belligerent posture. Israel has a full nuclear triad (land, air, subs) to respond to existential aggression. The U.K. and France have significant nuclear deterrents. The world is a powder keg.

There are decades where nothing happens, and there are weeks where decades happen.” Those words are apocryphally attributed to the Bolshevik revolutionary (and Foreign Affairs reader) Vladimir Lenin, referring to the rapid collapse of tsarist Russia just over 100 years ago. If he had actually said those words, Lenin might have added that there are also decades when centuries happen. The world is in the midst of one such decade. As with other historical hinges, the danger today stems from a sharp decline in world order. But more than at any other recent moment, that decline threatens to become especially steep, owing to a confluence of old and new threats that have begun to intersect at a moment the United States is ill positioned to contend with them. On the one hand, the world is witnessing the revival of some of the worst aspects of traditional geopolitics: great-power competition, imperial ambitions, fights over resources. Today, Russia is headed by a tyrant, President Vladimir Putin, who longs to re-create a Russian sphere of influence and perhaps even a Russian empire. Putin is willing to do almost anything to achieve that goal, and he is able to act as he pleases because internal constraints on his regime have mostly disappeared. Meanwhile, under President Xi Jinping, China has embarked on a quest for regional and potentially global primacy, putting itself on a trajectory that will lead to increased competition or even confrontation with the United States. But that is not all—not by a long shot. These geopolitical risks are colliding with complex new challenges central to the contemporary era, such as climate change, pandemics, and nuclear proliferation. And not surprisingly, the diplomatic fallout from growing rivalries has made it nearly impossible for great powers to work together on regional and international challenges, even when it is in their interest to do so. Further complicating the picture is the reality that American democracy and political cohesion are at risk to a degree not seen since the middle of the nineteenth century. This matters because the United States is not just one country among many: U.S. leadership has underpinned what order there has been in the world for the past 75 years and remains no less central today. A United States riven internally, however, will become ever less willing and able to lead on the international stage. Call it a perfect—or, more accurately, an imperfect—storm. These conditions have set off a vicious circle: heightened geopolitical competition makes it even more difficult to produce the cooperation demanded by new global problems, and the deteriorating international environment further fuels geopolitical tensions—all at a time that the United States is weakened and distracted. The frightening gap between global challenges and the world’s responses, the increased prospects for major-power wars in Europe and the Indo-Pacific, and the growing potential for Iran to cause instability in the Middle East have come together to produce the most dangerous moment since World War II. Call it a perfect—or, more accurately, an imperfect—storm. To warn of danger is not to predict the future. Ideally, things will turn out for the better. But good things rarely happen on their own; to the contrary, left to their own devices, systems deteriorate. The task for U.S. policymakers, then, is to rediscover the principles and practice of statecraft: to marshal national power and collective action against the tendency toward disorder. The goal must be to manage the collision of old geopolitics and new challenges, to act with discipline in what is sought, and to build arrangements or, better yet, institutions where there is sufficient consensus. To do all that, Washington will have to prioritize establishing order over fostering democracy abroad—at the same time as it works to shore up democracy at home.

Innovation, in particular, technology-based innovation, is the key driver for both economic competitiveness and national security. Other nations, with interests adverse to the United States, recognize this fact. In an increasingly interconnected world, nation states seek to accumulate innovation prowess, and hence economic strength, as a key element of their geopolitical power. Especially savvy nation states also pursue such ends as a mechanism to influence or diminish the national security and geopolitical power of the United States. There is no need to inflict upon the world the carnage of war if one’s geopolitical aims can be achieved via alternative competitive means. Several authors suggest China’s long-term ambitions include unseating the United States as the world’s economic and political leader.1 More compelling than opinions, several United States (“U.S.”) government and private studies document a systematic and coordinated effort by China to achieve technical and economic dominance through misappropriation of U.S. technology.2 These efforts are additionally supported by a companion effort to weaken international economic institutions and norms designed to protect U.S. intellectual property and free trade.3 The Chinese tactics include illegal means, and sophisticated use of legal means, to misappropriate U.S. technology and weaken the U.S. innovation infrastructure including: a) Leveraging the open university and laboratory ecosystem via direct sponsorship and engagement of Chinese nationals;4 b) Devaluing U.S. positions in patents and technology platforms;5 and c) Accessing private sector U.S. technology through acquisitions and ownership stakes in existing firms, funding of high-tech start-ups, and forced joint ventures and other contractual agreements as a prerequisite for entering the Chinese market.6 This particular form of competitive strategy targeting the innovation ecosystem in the United States is labeled by the Authors as “Innovation Warfare,”7 and it is defined as an executable competitive strategy: a) Reflecting an innovation, intellectual property, and technology strategy articulated and executed by the state (e.g. China); b) Using illegal means, political means, and legal economic activities—of the type previously residing solely in the province of commercial enterprise, to achieve the state’s objectives; c) Employing these economic and innovation activities to achieve both economic geopolitical power and to enhance military capabilities; and d) Functioning as a military, national security, and defense doctrine not solely as a reflection of the state’s economic policy goals nor commercial competition in the ordinary course. Innovation Warfare does not just threaten American jobs and economic prosperity. By simultaneously co-opting and weakening the innovation capabilities of the United States, China seeks to advance its rise to world power. China’s prosecution of Innovation Warfare not only encompasses a rejection of a rules-based international order, but also poses an existential threat. A world where China dominates the technology landscape is not just about who earns the profits or prevails in an abstract geopolitical fight. According to the National Security Strategy of the United States of America (“National Security Strategy”), China pursues a world in which economies are less free, less fair, and less likely to respect human dignity and freedoms.8 China’s Innovation Warfare activities risk the type of economic and geopolitical aggressions that were a root cause of two World Wars.

Big Tech’s exploitation of trademark law helps Big Tech reinforce its durable monopoly powers at significant costs for U.S. consumers. Big Tech’s anti-competitive practices have posed severe issues to the continuation of a free and open market. The lack of meaningful competition diminishes consumer choice and imposes significant costs to the consumer. Consumer costs include increased prices for products and services offered by Big Tech; increased data collection combined with nonexistent privacy controls by Big Tech; and a substantial deterioration in Big Tech’s quality of goods or services. A. Trademark Law allows Big Tech to increase prices & diminish quality (and user experience) for trademarked goods and services Online platforms’ dominance has left consumers with limited choice of platforms, thereby creating opportunities for exploitive conduct by Big Tech.132 Because market participants rely on Big Tech’s gatekeeper power to access users and markets, concessions and demands have become ‘“the cost of doing business’ given the lack of options.”133 This issue has become more prevalent, especially in light of the COVID-19 pandemic, where many businesses and consumers shifted “work, commerce, and communications online” and held events through video chat applications.134 Apple began to demand a 30% commission from businesses that moved their events online, using Apple’s video chat app (which is also a trademarked product) for virtual class offerings.135 Because Apple is the trademark owner for all Apple video chat products—iChat, iMessage, Facetime—Apple is incentivized to legally and strategically ensure that it reaps a financial benefit from trademarked products. These exploitive practices have allowed Apple stock to rise from $56.09 per share on March 23, 2020, to $125.91 as of closing on May 11, 2021.136 Despite the questionable moral ethics of price-gouging during a global pandemic, Apple has largely escaped criticism for its methods. Apple has retained significant brand loyalty, in no small part, due to the goodwill garnered by its trademarks.137 Apple’s trademarks not only serve to prevent competitors from using a similar mark, but in effect, also increase overall consumer costs, contrary to the intents of trademark law. Apple’s price increases have not been associated with an increase in quality of products, but rather “an inferior user experience and a reduction of innovation.”138 Google’s “AdWords,” also a registered trademark, is another manifestation of Big Tech monopoly power. AdWords is the only product that allows businesses to pay for the chance for their ad to appear alongside Google search results.139 The Subcommittee noted that even though Google claims to recognize trademark law by prohibiting users from using trademark terms in ads, Google “puts the onus of enforcement on victims” and does not stop trademark infringers unless the trademark is owned by Google.140 Thus, Google has created a circular economy where all its users contribute to the ultimate monetization of a supposed “free” product. Although Google search engine does not invoke a cost per search, AdWords is able to monetize the volume of searches by extorting businesses to pay for an opportunity to display their ads. Ultimately, all participants in this economy help direct money towards Google.141

So suddenly, the world is being left on its own. And what we're seeing is the world is not on autopilot. It doesn't self-organize. And that's the most worrisome thing going forward that this pandemic is both a reflection, but also an accelerant of that because the United States has not rallied the world to meet the challenge posed by this pandemic. And instead, we've pulled back we become much more national, kind of an island power, the rest of the world, it's on its own, it's not doing very well. And this is this is the reason I'm so worried that a lot of the trends that were in place, including them on America, much less involved in the world, nationalism, populism, the breakdown of international collaboration, all those things were in train before this pandemic, and now we're seeing them double down.

MEGHNA: So is the you're saying the world is not self-organizing right now, perhaps, at this moment? And at the same time, it doesn't? Is it feeling the loss of the centrality of American leadership? Because, I think we could argue that the way that, for example, international leaders do talk about the United States right now, at times, they're not necessarily feeling the loss of American influence.

What the boom could mean for the economy. The last time the United States saw a significant uptick in productivity growth was in the 1990s during the dot-com boom. Productivity growth means we can make more stuff in less time, which causes products and services to be more abundant and cheaper. It's like fairy dust being sprinkled on the economy, lifting society's standard of living. "The first thing that happened back in the early 1990s was not increases in productivity and the like," Haltiwanger says. "That came later." What came first, he says, was a surge in new startups. He says startup booms are a "leading indicator" of this virtuous cycle for the economy. Startup booms, Haltiwanger says, are both a reflection of technological innovation and a huge driver of innovation. Startups figure out how to use new technologies. They experiment and develop new products with those technologies. They force competitors to adapt and innovate. I should mention, however, that when I spoke to Haltiwanger back in 2021, he was also bullish that the startup boom would result in a long-awaited boost in productivity growth. But three years later, he admits, we still aren't seeing it. "The productivity statistics are pretty anemic," he says. There's a cliché used in articles when discussing whether technological innovations will ultimately lead to productivity increases: references to the late economist Robert Solow. In the late 1980s, when the personal computer was spreading like wildfire through the U.S., Solow famously wrote, "You can see the computer age everywhere but in the productivity statistics." Haltiwanger stresses that Solow wrote this back in 1987. And, he says, "The productivity surge didn't really show up until the mid-1990s." It takes time. The economist Erik Brynjolfsson and others have done research suggesting that the effect of new technologies on productivity growth may even follow a "J-curve." That is, productivity may actually dip before it shoots up, because businesses need to invest in the new technology and spend time figuring out how to use it. Only then will they and the broader economy see tangible results.

Creating a name for a startup company is a daunting task for entrepreneurs. With such a decision comes countless hours of research, efforts to incorporate the business entity, and securing intellectual property rights to ensure that others will not use the same name. For the entrepreneur, trademark registration of a company name symbolizes a weight lifted from their shoulders, as it officially signals that the name is theirs. What they do not realize, however, is that the name will not remain theirs if trademark trolls have the final say. Trademark Trolls Explained Unfortunately for startups, many large companies with deep pockets often engage in needless litigation to prevent anyone and everyone from using even remotely similar trademark names. There are two common tactics utilized by trademark trolls to beware of. The first tactic is more opportunistic and involves companies who register trademarks with no intent to actually use them. Such companies use the trademark as leverage in keeping an eye out for companies using similar marks in an attempt to charge them licensing fees. The second tactic, which is more concerning for startup companies, involves large companies who threaten to sue anyone using a similar mark for trademark infringement. [1] To anyone with a basic understanding of intellectual property law, the idea of trademark trolling is absurd, largely because in the eyes of the law, there is no merit to many claims that the simple use of a word in a completely unrelated market infringes the rights of another holder of rights in that word. The right to sue for trademark infringement exists to protect owners’ rights and to protect the public from unfair competition. However, for startup companies, the threat of such frivolous litigation can be catastrophic. Startups often do not have the funds or legal resources necessary to combat the litigation, and are forced to allow the large company trademark trolls to bully them into cessation of using the name. USPTO Study In a recent study, the United States Patent and Trademark Office’s Report to Congress on Trademark Litigation Tactics defined a trademark troll or bully as a trademark owner who uses its rights to harass or intimidate other businesses beyond the scope of what the law is reasonably interpreted to permit. [2] In this study, the USPTO acknowledged from data gathered by attorneys, professors, and businesses of all sizes that aggressive litigation and pre-litigation tactics by trademark bullies are often targeted at small businesses. [3] Such aggressive tactics include threatening cease and desist letters alleging that use of a name infringes the accuser’s trademark, as well as the filing of lawsuits. In many instances, these tactics scare the smaller businesses away from continuing to use the name in fear of retaliation by the larger trademark owner. This fear largely stems from the lack of resources available to fight back against the accusing party. The Problem with Proving Infringement From the perspective of a lawyer who can comprehend what is necessary to establish and fight a trademark infringement case, trademark trolls do not pose a major legal threat simply because their allegations often do not hold much strength. Under the Lanham Act, in order to prove trademark infringement, a trademark holder must show (1) that they have a valid trademark; (2) that someone else used their mark in commerce; and (3) that such use is likely to cause confusion to consumers as to the source of the goods or services of the mark. [4] Factors relevant to whether a trademark is likely to cause confusion include the strength of the mark being infringed, how similar the two marks are, evidence of confusion, etc.[5] The element of confusion is where trademark trolls will often fall short. Many trademark trolls sue or threaten to sue anyone who simply uses a singular word present in their trademarks. In instances where they sue companies completely outside of their relevant industry or market, it seems highly unlikely that confusion could be possible. To illustrate this problem, many point to companies like Monster Beverage as a classic example of a trademark troll. Monster has filed more trademark infringement suits than most companies in the United States. They take their tactics to the extreme of suing anyone who attempts to use the word Monster. For example, Monster recently sued MonsterFishKeepers, an online forum that allows users to discuss fish. A rational person would likely never confuse an aquarium-oriented online forum with a corporate giant known for its energy drinks just because the two happen to have the word “Monster” in their names. Nevertheless, Monster Beverage persisted with aggressive cease and desist letters and threatened litigation to make them stop using Monster in their name. [6] Additionally, in January 2018 alone, Monster sued at least five companies for use of the word Monster in trademark applications. Two of these applications include “Mini Monster” in the restaurant industry, and “Monster Equipment” in the auto industry. [7] In addition, Travelers Insurance is known for its bullying of companies who use umbrellas in their logos. Though they belong to the property and casualty insurance market, Travelers has gone so far as to challenge the use of umbrellas in marks by software companies, as well as health and nutritional based companies. It is highly unlikely that a consumer seeking to buy a nutritional supplement from a small company could potentially be confused into thinking they were buying said supplements from a large property insurance company solely because both companies have umbrellas in their logos. [8] The Effect on Startup Companies On the surface, receiving a cease and desist letter to stop use of a trademark because it could potentially infringe on someone else’s mark may not be concerning to most, especially if the infringement allegation has no merit. Additionally, larger, deep-pocketed companies with access to legal resources can afford to fight back against such claims. However, it is not the merit of the case that poses problems for entrepreneurs and startup companies; it is the cost involved in proving that such accusations are meritless. The legal fees associated with doing so can start as high as hundreds of thousands of dollars depending on the profile and duration of a case. The American Intellectual Property Law Association estimates that such litigation can cost a company up to $25 million to dispute. [9] For a startup company just getting off the ground, legal fees this high are enough to put them out of business before the business even takes off. There is unfortunately no concrete answer as to how to ease the entrepreneurial concern of being retaliated against by a trademark troll. With this in mind, the best advice to give to an entrepreneur starting a business is to trademark a name and logo that is as unique as possible, and try as hard as possible to ensure that nobody has ever used it before. Obviously, this is easier said than done.

This paper contributes to the research on the macroeconomic origins of conflict. Based on a sample of 133 low and middle-income countries over a 30-year period, it analyses to what extent changes in a country’s commodity terms-of-trade (ToT) can explain an increase in the incidence and intensity of conflicts through their effect on aggregate income. While the evidence from previous studies on the link between macroeconomic conditions and conflict is rather inconclusive, we find a significant relationship. Our baseline model finds that a negative commodity ToT shock leads to an increase in the number of conflict events and fatalities in our sample. Moreover, the effect plays out over several years albeit with decreasing strength after the second year; and its magnitude is twice as large for Low-Income Countries and Fragile and Conflict-affected States when compared with the sample average. In addition, our results show that macroeconomic shocks are creating more violence in countries with higher inequality and in cases where fiscal policy faces relatively stronger constraints on financing a response to the initial shock to incomes. Our results are robust to a number of plausible variations in model specification. The paper’s results, in conjunction with previous studies that emphasize the economic cost of conflicts, suggest the presence of a fragility trap—a vicious cycle of worsening economic conditions and deteriorating conflicts. Effective policies and well-tailored external financial support could be expected to help countries address the challenge.

The world suffers from a large number of violent conflicts. According to the Uppsala Conflict Data Program Georeferenced Event Dataset (UCDP GED), 1 which identifies conflict events as incidences of the use of armed force by an organized actor against another organized actor, or against civilians that result in at least one direct death, 17,000 conflicts occurred in 2021. These claimed almost 120,000 deaths. And while the incidence of conflicts subsided somewhat after the surge associated with the Arab Spring, their frequency over recent years has remained almost twice as high as that experienced in the outgoing decade of the 20th century (Figure 1).

Small businesses don’t get a whole lot of attention in the business world. Business reporters seem to only give press to big businesses—their profit and loss data, their newest product, a corporate scandal. Yet, 99 percent of all businesses in the United States are small businesses. Small businesses are the lifeblood that keeps the American economy functioning. Small Business: The Engine That Keeps the Machine Running According to a report issued by the Small Business Administration (SBA) in 2019, small businesses account for 44 percent of economic activity in the United States. Small businesses create two-thirds of new jobs and deliver 43.5 percent of the United States’ gross domestic product (GDP). In addition to keeping the economy running, small businesses also lead the way in innovation. Small businesses produce 16 times more new patents per employee than large patenting firms do. Small tech startups with fewer than 5 employees account for a large number of these patents. Not only that, but small businesses reflect the diversity of the United States population in a way that the employee base of large corporations do not. 36 percent of small businesses are owned by women. 9 percent are owned by veterans. 14.6 percent of small businesses are owned by people of color. This includes 2.3 million Latinx business owners, 1.9 million black business owners and 1.6 million Asian business owners.

Trademark bullies inhibit First Amendment-protected speech by threatening and forcing litigation costs on speakers and producers they oppose.124 The recent Second Circuit decision in Louis Vuitton Malletier SA v. My Other Bag, Inc. is instructive in this regard.125 After the court found no infringement and fair use by a small producer, My Other Bag126 , a group of academics filed an amicus brief with the Second Circuit urging it to reconsider its decision to forgo feeshifting.127 My Other Bag is a small business; its products are canvas tote bags with hand-drawn pictures of luxury handbags from an array of luxury designers.128 The canvas bags also included the expression “My Other Bag,” which MOB explains in their marketing materials is meant to “‘playfully parody designer bags.’”129 The district and appellate courts agreed that My Other Bag’s use was a quintessential fair use parody case.130 My Other Bag moved for attorneys fees and costs, and the court deemed them unwarranted.131 The court justified its conclusion and explained that Louis Vuitton’s arguments supporting its trademark claims were “nonfrivolous” and there was no evidence that Louis Vuitton sued with “improper movtive.”132 In the amicus brief filed by various academics, the authors recognize that the Second Circuit afforded the proper broad allowance to criticism and parody inherent in the trademark system.133 However, its decision creates an impossibly high standard to obtain fee-shifting in fair use cases.134 This creates an environment where large, resource-rich mark owners can use the trademark legal system to subdue critics and cripple free speech.135 Even outside the fair use parody cases, attorneys fees and other litigation costs loom largely over targets of trademark bullies.136 Hand-in-hand with the dampening of free speech by competitors is also the detrimental impact on small businesses and competition in the marketplace. Large, resource-rich trademark owners are not, for the most part, pursuing their counterparts.137 In actuality, small defendants bear the brunt of the harsh enforcement tactics perpetrated by trademark bullies.138 Small businesses are particularly trigger-shy when it comes to engaging in litigation.139 Even if small defendants did have an appetite for challenging large mark owners, litigation costs are high and seemingly ever-increasing.140 Therefore, to stay afloat, small businesses are often forced into a settlement with inadequate representation and a misunderstanding of the merits of their claims.141 The cost of this unfortunate truth is ultimately externalized to consumers and the market itself.142 The impact of this bullying behavior is a consistent and large barrier for producers to enter the marketplace and directly affects the number of choices available to consumers.143

The court first noted that a positive effect of the invocation of the power to cancel serves to “put the public on notice of its trademark related judgments.”179 Once there has been a final judgment either ordering or affirming an order to cancel and the proper procedures are followed, that mark is still present on the register, but its status is “cancelled.” Hence, when the court orders cancellation of a mark that has been abandoned due to non-use or has been invalided on the basis of priority, the court fulfills the goal of “rectifying the register” as set forth in Section 1119. This rectification is similar to hitting the refresh button on an internet webpage: once pressed the old data is discarded and only new data remains. Thus, the invocation of Section 1119 cancellation serves an important gap-filling function: the USPTO has neither the resources nor the ability to police every mark on the register to assure that they are being used in commerce. The liberal use of Section 1119 serves as a judicial cleansing mechanism to produce a more updated and coherent register of marks that are actually used, thereby producing a more accurate picture for those searching for conflicts in their quest to adopt their own mark. Thus, judicial refreshment via Section 1119 puts the public on notice of trademark related judgments. The court also posited that this refreshment mechanism also “reduces the potential for future uncertainly over the rights in a particular mark.”180 Cancellation results in the release of marks back into the marketplace for others to adopt and invest in. This also encourages healthy competition. Where the public is on notice of what marks or terms are monopolized for the purposes of adoption for specific goods or services, that public is on notice of what marks it can or cannot appropriate in the course of their own trademark development and adoption. The more often the register is refreshed, the more accurate picture trademark-seekers may have to assess trademark conflicts. Thus, new producers and hopeful mark owners may adopt words with ease and with confidence