Intellectual property (IP) observers are likely familiar with the much-publicized Patent Assertion Entities (PAEs), a.k.a. Non-Practicing Entities (NPEs), a.k.a. “patent trolls.” PAEs are notorious for suing companies for the sole purpose of mining licensing fees, often regardless of the lawsuit’s merit. IP-related lawsuits generated by PAEs make up 62% of all IP infringement lawsuits led.
What exactly is a patent troll?
Generally, patent trolls are entities that have patents or patent portfolios, and use them primarily for the purpose of licensing to others. Typically they derive very little, if any, revenue from making, using or selling the patented product or service. They may seem less sympathetic because they acquire patents through a commercial transaction rather than through the customary course of research and development.
So, what is a trademark troll or copyright troll?
Trademarks are used to identify and distinguish goods from those of another; and they are intended for those entities using, or those with a bona fide intent to use, the mark in commerce. A company that acquires or creates trademarks for the sole purpose of enforcing them would not use or have a bona fide intent to use the mark(s) in commerce and would have difficulty legitimately enforcing their marks. Copyrights accrue to the author of a creative work, but can be aggregated by their employer or through later transactions. The pejorative “troll” label is sometimes applied to entities that are aggressively enforcing rights against others who might be using similar marks or works but in different settings.
How does a trademark troll or copyright troll turn into a bully?
Trademarks are generally limited to the goods and services for which they are registered, but the law recognizes some logical areas of expansion or potential dilution where marks can be enforced. Some entities may improperly attempt to enforce their trademarks against products in other goods and services categories well beyond the actual intended use that the trademark is registered to cover. Copyright bullies sometimes assert ownership of works even where others are seeking to make fair use.
How we can help?
We provide IP specific defense insurance policies to help policy holders defend against charges of trademark or copyright infringement, whether frivolous or not, and policies to help enforce trademarks or copyrights against those who are infringing. Contact us today, so we can get you in touch with one of our IP consultants to help or answer any questions!
