Attorney fees and canceling of the trademark will deter trademark trolls

Fourth, trademark law may benefit from the applicability of law developed to address patent trolls.13 For example, the U.S. Supreme Court’s eBay v. MercExchange decision concerning patent injunctions has been applied to trademark injunctions, thus removing a presumption of irreparable harm where a likelihood of success on the merits is demonstrated.14 The U.S. Supreme Court’s Octane Fitness v. Icon Health & Fitness decision concerning attorney fees in patent cases has also been applied in trademark cases.15 Fifth, the litigation and other strategic advantages present in so-called patent trolling cases may not be available in trademark cases.16 Sixth, state attorney general enforcement of state consumer protection laws against patent trolls may deter a trademark troll problem from developing.17 Notably, at least one state has already considered legislation specifically targeted at trademark trolls.18 Moreover, the U.S. Federal Trade Commission’s (FTC) enforcement of federal consumer protection laws against patent trolls may similarly deter trademark trolls.19 Seventh, one commentator has argued that the patent troll problem developed, in part, because of the U.S. Court of Appeals for the Federal Circuit’s (Federal Circuit) nationwide exclusive appellate jurisdiction over patent cases.20 Trademark law is less susceptible to a troll problem developing because the various federal circuit courts of appeals, as well as state courts, have jurisdiction to hear trademark appeals.21 Finally, an early U.S. Court of Appeals for the Seventh Circuit decision addressing trademark trolling upheld an award of attorney fees against a troll and canceled the troll’s mark for lack of use.22 This case has perhaps provided a disincentive to trademark trolling.23