Intellectual Property Directions

Duncan Bucknell recently raised the question in the title of this post - could someone buy up trademarks or copyrights and engage in patent troll-like behavior? And since the answer is clearly “yes”, why hasn’t it happened? Why don’t we have trademark or copyright trolls?

Duncan suggested that the value of a trademark is supported by the goods or services it is associated with, so “you can’t just acquire a trademark and expect it to maintain value without also continuing to supply the goods or services”. No goods or services = no trademark value to claim damages against.

Duncan believes copyrights are more likely to work (for a troll) as they don’t have the problems that trademarks do and that the online environment and software seem to be situations where copyright infringement might be sufficiently widespread to generate the returns.

My take on it is a little different. I think both trademarks and copyrights are significantly less fertile ground for trolls than patents. If you are unintentionally infringing a patent you may be out of business for quite a while trying to do a design-around if you don’t want to pony up the license fee. And the cost of defending yourself in court is prohibitive unless you’re really, really sure you’re not infringing. So the troll has the upper hand.

However, while you certainly might be accidentally infringing a  trademark, defending yourself in court is not as expensive as a patent suit and changing a trademark is unlikely to kill your business (many companies do it on their own; Esso –> Exxon). Additionally, registered trademarks are not hidden the way patents can be and it’s really unlikely that multiple companies will be infringing the same trademark, so the troll doesn’t have many targets to hit or much leverage with the one possible infringer.

There’s really no way for you to unintentionally use a substantial portion of copyrighted material (sure, the 1 million monkeys might eventually type Hamlet, but I’m not counting on it!), so anyone coming after you is not a troll, at least in my book. The enforcement is only a surprise to you because you assumed you’d get away with the infringement and that makes you, not the enforcer, the bad guy.