Legislative solvency mech

SANCTIONSAGAINST HABITUAL AND ATTEMPTED OVER-ENFORCERS A clear issue attached to trademark bullying is the lack of a disincentive to bully. While some frameworks are available to courts to impose sanctions against attorneys for ethical and conduct violations, none exist exclusively within the trademark ecosystem to solve this issue.166 Adopting a new statutory regime targeting this issue would benefit courts by more clearly defining problematic behaviors and therefore more effectively combat bullying behavior. In the interim, courts can still enforce trademark bullies through conventional Rule 11, 28 U.S.C. § 1927, and Section 35 of the Lanham Act.167 Courts could maintain the necessary dexterity to apply the appropriate sanctions to attorneys, clients, or both. Historically, however, judicial sanctions are rare in trademark actions.168 Fortunately, a bill introduced in the Minnesota State House of Representatives provides an excellent starting point. The cornerstone of House Bill No. 2996 is that it provides an alternative, cost-conscious strategy to traditional civil trademark litigation in creating an administrative avenue to pursue.169 The bill allows either party to request a settlement conference in this proposal.170 The meeting must occur within thirty days of the request, and it allows for virtual attendance, depending on the parties’ locations.171 All of these are incredibly pertinent provisions. First, the allowance to opt into an administrative proceeding can significantly reduce the costs to mark owners (especially small businesses) when defending their marks. Additionally, the time constraint placed on commencing the meeting provides the opportunity for quick resolution between both parties. Finally, virtual flexibility is imperative to allow geographically diverse parties to appear before t decisionmaker efficiently and reduce costs for both parties to defend their marks. The proposed legislation outlines procedural and evidentiary allowances during the hearing.172 Notably, the bill allows for the admission of expert witness testimony, evidence that supports a mark’s use in commerce, and any pertinent industry practice standards.173 These types of evidence are all the similar kinds that parties present in traditional suits.174 This provides both parties with adequate opportunity to advocate for their marks effectively. The proposed legislation also allows administrative law judges to issue summary judgment with or without the request of either party, and the bill’s language explicitly outlines this use for “case[s] of trademark bullying.”175 This allows for increased efficiency in dispute resolution and a speedier identification of bullying behavior. The most interesting and arguably impactful aspect of this proposed legislation is its relentless emphasis on its purpose to produce meaningful outcomes and prevent the frivolous expenditure of resources. For example, subdivision 4 of Section 4 highlights the need for parties to “be prepared” and “meaningful[ly]” participate in settlement discussions.176 Additionally, subdivision 9 of Section 4 dictates that alleging parties who refuse to participate will be fined and held responsible for the defending party’s costs and attorney’s fees.177 These and other provisions underscore the demand placed on parties to actively and meaningfully engage in the process to prevent the expense of time, money, and other resources. Most important, though, is the proposed statute’s acknowledgment of the importance of aggregation. Trademark bullying persists because of the continuous and overzealous presence of the bully. Therefore, the ability of the court system to award treble damages for those it identifies as engaging in bullying behavior provides a substantial threat to would-be bullies.178 Additionally, the ability of the court to award treble damages after two instances of bullying in ten years cuts what could become prolific bullies off early and ideally prevent parties from further engaging in abusive practices.179 Overall, the proposed Minnesota statute creates an excellent skeleton for a federal statutory enactment to combat trademark bullying.