The current system of trademark trolling will devastate our economy in the short and long term. Remedies, like the plan, are key to protect trademark and secure our overall economic growth

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