Aff - Trademark Trolls - MSDI 2024

Trademark Trolls Affirmative- MSDI 2024
Affirmative
1AC
1AC - Inherency
Despite the United States first to use trademark system, trademark trolling is on the rise and damaging small businesses. Government intervention is desperately needed
Puneet Munjal “Trademark Trolls – Tackling The Practice Of Frivolous Trademark Registration” 2022 https://iiprd.wordpress.com/2023/01/28/trademark-trolls-tackling-the-practice-of-frivolous-trademark-registration/
US is also first to use requirement jurisdiction[2]. Commercial use is not just a need for registration in the United States, but it also emphasises the applicability of other trademark-related concepts. To explain, courts bolster the stipulation by extra doctrines in addition to Section 45 of the Lanham Act[3], which requires ‘use by a person’ as a prior prerequisite. Despite this policy, trademark trolling has been reported in both the United States, India and many other countries. More than 600 applications to register marks related to COVID-19 have been lodged with the US Patent and Trademark Office[4]. The quantity of applications is increasing, with many of them appearing to be “opportunistic” trademark applications. One, for example, is attempting to register the trademark “COVID-19 VIRUS FREE GUARANTEED” for clothing and other consumer items. Another is attempting to register the trademark “COVIDFREE” for antibacterial products. Indian courts have recently recognised these flaws and ruled in favour of legitimate users in a number of situations. Hennes and Mauritz v. HM megabrands Pvt. Ltd[5] was a case where H&M had filed a trademark infringement lawsuit against HM Megabrands. The Delhi High Court issued an interim injunction in this matter, finding that the plaintiffs will suffer injury and substantial economic loss if the injunction was not granted. This decision stresses that trademark trolling will not be tolerated by the courts, and that international trademarks are protected equally in the country. Ways to tackle the Trademark troll menace Trademark applications should be filed as soon as possible, not just in the countries where one does business, produces, or supplies commodities, but in all countries where future expansion is probable. Transliterating one’s trademarks, including logos, into the local language. Improving the registration procedure, especially in areas where the first-to-file strategy is used. Companies should perform vigilant searches and set up watch systems to discover trolls early on. To prevent uncontrolled registrations, fees for filing trademark registrations should be revised on a regular basis, and suitable changes should be made as economic condition and time changes. Companies or entities can keep track of the use of their own trademark in troll-friendly nations by archiving invoices, contact with distributors, and commercial papers. Legislative changes in the realm of trademark law, as well as judicial backing, will aid in the fight against the problem. The courts have lately made it clear in their judgements that applications filed frivolously or with malice will not be considered. To identify prospective trolls early on, set up watch services or do trademark searches. Updating the search and examining local media for references to the trademark on a regular basis will assist trademark owners in staying on top of local changes. Trademark trolling is a threat to growth and expansion of legitimate trademark users. The adoption of the First to Use policy is preferable to the First to File approach in terms of preventing trademark trolling.. In todays globalised economic world growth of business is the utmost priority and trademark trolling being a hindrance to growth must be mitigated by countries using first to file policy by adopting First to use policy. It must be noted that First to use policy is also not fully shielded as evident from the fact that common law jurisdictions such as India and USA too faces many cases of trademark trolling ,there are some loopholes on which the Govt. and the trademark holders should work to prevent them from being a victim of this menace.
1AC - Plan
Resolved: The United States Supreme Court should significantly strengthen its protection of domestic intellectual property rights in trademarks by implementing a consistent confusion-based multifactor trademark test. The United States Supreme Court will also enforce penalties as found in Central Manufacturing, Inc. v. Brett*
*Central Manufacturing Inc v. Brett establishes the ability to cancel the trademark if found to be fraudulent and force the troll to pay attorney fees
1AC - Solvency
Clarity is key – the lack of uniform standard is the only reason trademark trolls can be successful. Supreme court clarification solves.
Pritchard 2022. Denise Pritchard, J.D. UC Hastings College of the Law, Class of 2022. “Big Tech Trademarks: Trademark Law Empowers Big Tech to Maintain Market Dominance,” 13 Hastings Science & Technology Law Journal 101 (2022). <https://repository.uchastings.edu/hastings_science_technology_law_journal/vol13/iss2/3> Accessed 7/6/24. ARJSH
IV. Potential Remedies Available in Trademark Law One remedy to tackle Big Tech’s monopoly power includes breaking up Big Tech and regulating Big Tech merger activity (and its trademarks) to prevent unfair competition.151 Big Tech’s trademark dominance readily brings to mind the power and influence held by oil barons and the various monopolies of the early 1900s. Anti-trust laws were enacted to prevent the dominance of the various monopolies that emerged in the U.S.152 Although the problem is similar today, this solution probably is unrealistic due to the different nature of the dominance held by Big Tech and the old oil barons. Whereas the previous monopolies dominated in obviously distinctive spheres, many Big Tech companies exist in the same plane but in slightly different niches. Facebook, Google, Apple all share notable number of users, yet their business model does not conflict with one another. Therefore, even if these three companies are broken up, other companies will likely just take their place because the space these companies occupy on the economic ladder is so undefined and subject to change. An alternative remedy available in trademark law includes imposing higher fees on Big Tech companies that engage in frivolous or meritless trademark infringement claims. However, this is a difficult proposition because the likelihood of confusion multifactor test, discussed supra, is implemented differently by different circuits.153 Because no uniform standard has emerged on how many factors are needed to trigger a likelihood of confusion, the only way that this solution can become realistic is if the Supreme Court, or relevant authorities, implement a consistent confusion-based multifactor test to be used by all circuit courts. A uniform standard established across all circuits, will likely discourage Big Tech companies from pursuing trademark infringement suits based on meritless claims for likelihood of consumer confusion. A uniform standard would mean Big Tech companies who rely on their jurisdictional advantages would no longer be able to hide behind the shield of the law simply because they have more resources to file an infringement suit in a favorable jurisdiction. This should lead to less frivolous and meritless infringement claims and encourage additional competitors to enter the market. Conclusion The current market dominance by Big Tech makes the cost of market entry prohibitive and chances of success slim.154 As Big Tech acquires more technology companies, its market dominance is strengthened; thereby, making it more difficult for consumers to switch providers. High entry barriers and high switching costs reinforce Big Tech brand loyalty.155 Big Tech strategies run contrary to the intent of U.S. trademark law (i.e., to promote quality of goods and services by allowing customers to associate brands with quality). Big Tech has used trademark law to promote their monopoly power while decreasing the quality of their services. This is a significant problem in the Intellectual Property sphere today and requires immediate correction. Because we are in unchartered historical waters, the solutions are not clear, but what is clear is that unless an actionable solution emerges soon, Big Tech market dominance will not stop, and their continued exploitation of trademark law will only increase as they seek to further entrench themselves into the lives of every American.
Plan reduces the likelihood of future suits by creating clarity and accuracy within the trademark register
Anna B. Folgers (IIT Chicago-Kent College of Law) “The Seventh Cir enth Circuit’s Approach to Deterring the To Deterring the Trademark Troll: Say Goodbye to Your Register our Registration and P ation and Pay the Costs of Litigation” September 01, 2007 3 Seventh Circuit Rev. 452 https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1173&context=seventhcircuitreview
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
1AC – Economic Futures
Advantage _ : is Economic Futures
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
Jennifer M. Danker (2024 J.D. Candidate – THE University of Ohio) “To "THE" or not to "THE"? The Question has been Answered: An Examination of Trademark Bullying in the context of the Ohio State University's Recent Trademark Registration” 30 J. INTELL. PROP. L. 323 (2023). Journal of International Property Law https://digitalcommons.law.uga.edu/jipl/vol30/iss2/4
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
There are multiple scenarios:
First, small business entry into the market is devastated by the lack of trademark protections. That’s Danker 23 above
And, Small businesses are key to the economy
B.A., 20 [Better Accounting, "The Importance of a Small Business," 8-11-2020, https://betteraccounting.com/small-businesses-are-the-backbone-of-the-economy/, accessed 2-19-2022]
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.
Economic decline causes war---studies prove.
Patcharaporn Leepipatpiboon & Chiara Castrovillari 23, the first is a PhD Candidate in Economics at UCLA, and the second is a Research Assistant at International Monetary Fund who also holds a master’s degree in public affairs from Brown University, also with Tomohide Mineyama, “Macroeconomic Shocks and Conflict”, IMF Working Papers WP/23/68
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).
How can economic conditions affect the likelihood of conflict? Since conflicts arise from complex political, social, and ethnic contexts, singling out an individual determinant seems infeasible. However, it is plausible to assume that economic factors, such as changes in aggregate income levels, would contribute to the dynamics that foster conflict. For instance, higher inflation would reduce purchasing power, thereby increasing the inclination of individuals to participate in violence. Less opportunities for gainful employment or reductions in salaries and wages may have similar effects. These would be the case especially in situations where governments are lacking the means to effectively mitigate economic hardship as macroeconomic shocks deplete their fiscal coffers.
Recent years have seen several major economic shocks on a global scale with a negative effect on output and thus aggregate income, including the Covid-19 pandemic, an increasing number of severe climate events, and Russia’s 

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