The Summer Trademark Olympics (Please Don't Sue Us)

(Photo: Kevin Dooley)

Whether the Olympics are around the corner (as they are now) or a few years away, there are always Olympic-themed events going on. Recently, a group called Ravelry sponsored a knitting competition called the “Ravelympics.” [Related post on Ravelry: “Is There an Elitist Oligarchy in the Underworld of Knitters?”] Whereas most people probably imagined a bunch of grandmothers knitting mufflers, the U.S. Olympic Committee saw a conspiracy to infringe its trademark in the word “Olympics.”

After enduring a lot of criticism, the USOC backed off the knitters. But what the USOC tried to do isn’t unusual.

In fact, just recently luxury goods purveyor Louis Vuitton threatened to sue Penn law school over a poster for an academic conference on the law of fashion that featured an artist’s funny take on the Louis Vuitton logo (with the famous “LV” replaced with a “TM”). Louis Vuitton didn’t see the joke, and threatened the law school (which, being a law school, knew enough not to be scared).

Many trademarks are so zealously (over)enforced that it sometimes seems crazy. Which raises the question: why do brands (and their lawyers) do this?

The answer involves the interaction between a quirk in trademark law and the culture of lawyers.

First, the law: A few courts have held that even minor failures or delays in aggressively enforcing trademark rights can be evidence of the mark holder’s acquiescence in uses that would otherwise be unlawful. In other words, if you don’t act like a pit bull in defense of your mark, you may be seen as tacitly accepting its use by others. Courts are not consistent – indeed, in some cases, mark holders with a clear record of non-enforcement have been given a pass.  And so you might expect lawyers to advise their clients that the benefits in time and money saved – and bad publicity avoided – by ignoring small fry such as knitters is probably worth it. But instead, lawyers are apt to overreact to even a few rulings that go against trademark owners.

Why? For one, lawyers get paid for doing something, not for doing nothing. So lawyers are incentivized to advise their clients that every unauthorized use of a trademark, no matter how silly or obscure, must be dealt with lest the trademark owner later be found to have acquiesced.

And this creates a sort of strange feedback loop. What looks initially like overenforcement of trademarks – that is, sending cease and desist letters and filing lawsuits in cases where no one thinks the trademark owner is really going to be harmed – begins to look more like normal behavior.

This is why no one was surprised by Louis Vuitton’s reaction to the law school poster.   The poster was perfectly lawful, and Louis Vuitton came away looking silly. But don’t expect that to change any time soon, because the habit of trademark overenforcement seems to be deeply engrained by now. With the Olympics opening in just over a month, stay tuned to see many more ham-handed enforcement efforts.