Shaming Trademark Bullies
66 Pages Posted: 13 Jan 2011 Last revised: 26 Aug 2012
In September 2009, Hansen Beverage Company sent Rock Art Brewery a letter demanding that Rock Art cease and desist its use of “VERMONSTER” as a trademark for beer. Hansen is a multi-million dollar beverage corporation and Rock Art Brewery is a small brewing company owned by a husband-and-wife team based in Vermont. Hansen’s gravamen was that Rock Art’s “VERMONSTER” beer allegedly infringed on Hansen’s “MONSTER ENGERY” trademarks. Instead of capitulating, Rock Art Brewery fought back, taking to the virtual streets of the internet and galvanized public sentiment against Hansen’s. The end result was an amicable settlement agreement that allowed Rock Art to continue its use of “VERMONSTER” as it had before. Rock Art’s success highlights a growing phenomenon in trademark law: the use of shaming by small businesses to defend itself against a trademark bully. To date, most scholarly work on curtailing the over enforcement of trademarks has been focused on legal means, such as developing stronger defenses to infringement. While this is important and meaningful work, focusing on purely legal means may not assist small businesses or individuals who have no access to legal resources in the first instance. The goal of this Article is to complement the work being done by these scholars and suggest that shaming can be an effective, pre-litigation tool to combat trademark bullies. Since shaming is currently not guaranteed to be effective or available to all small businesses and individuals, this Article suggests a number of legal reforms that could be undertaken in order to maximize the availability of shaming, as well as assist in effective shaming.
Keywords: trademarks, bullying, over enforcement, small businesses, Trademark Technical and Conforming Act, social media
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