37 Colum. J.L. & Arts 211 (2013-2014)
To Bully or Not to Bully: Understanding the Role of Uncertainty in Trademark Enforcement Decisions

handle is hein.journals/cjla37 and id is 219 raw text is: TO BULLY OR NOT TO BULLY: UNDERSTANDING THE
ROLE OF UNCERTAINTY IN TRADEMARK
ENFORCEMENT DECISIONS
Jessica M. Kiser*
ABSTRACT
Companies like Starbucks and Chick-fil-A are routinely labeled trademark
bullies. The term trademark bully is typically used to describe a large company
that uses aggressive intimidation tactics and threats of prolonged trademark
infringement litigation to stop small businesses and individuals from using their
own trademarks where the stated claims of infringement are likely spurious or non-
existent. Trademark bullying harms competition and chills the free speech interests
of those seeking to use trademarks for criticism and parody as permitted by the fair
use doctrine.  This Article identifies two fundamental causes that interact to
encourage the aggressive tactics used by trademark bullies. First, trademark law
imposes a vague duty on trademark owners to police third party trademark use
for potential infringement. This uncertain duty renders trademark owners unable
to accurately predict the risk of harm that third parties pose to their trademarks.
Secondly, inherent cognitive biases affecting evaluations of such risk lead to
systematic judgment errors and overestimation of the risk involved, thereby
encouraging aggressive trademark enforcement.
This Article uses prospect theory, an empirical social science approach to
understanding human decision making, to characterize the psychological
phenomena, including loss aversion and overestimation of risk, that motivate
trademark bullies. Prospect theory explains apparently irrational decision making
by trademark bullies.   Recently proposed solutions for trademark bullying
mistakenly assume that the trademark bully conducts a rational cost-benefit
analysis prior to acting. Better solutions require an understanding of the actual
psychological processes that underlie these aggressive tactics.
*  Assistant Professor of Law, Gonzaga University School of Law. I wish to thank the faculty
of Seattle University School of Law and the Gonzaga University School of Law for their thoughtful
advice on an earlier version of this article. This article benefitted greatly from the comments and
insights provided by the participants of the Junior Scholars Virtual Colloquium. Thanks also to Sean
Wright for his tireless support and to Matthew Meade, Mitchell Wayerski and Charles Allen for their
research and editorial assistance.

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