As you will recall, we have followed pretty closely Chick-fil-A’s “Eat Mor Chikin” trademark claims against Vermonter Bo Muller-Moore and his “Eat More Kale” trademark:

Although I initially indicated we’d save a postage stamp and not submit a Freedom of Information Act request for a copy of the successful Letter of Protest to confirm the protestor’s identity (as there was little doubt that it was submitted by Chick-fil-A), on second thought, our curiosity about the contents of the submission got the better of us, so here are pdf links to the Chick-fil-A Letter of Protest submission that we obtained from the USPTO, enjoy:

What do you think, does Chick-fil-A’s Letter of Protest meet the USPTO’s requirements for an ex parte Letter of Protest? I have questions about the highly argumentative nature of the submission, which is supposed to be focused on simply providing appropriate evidence that may support refusal of registration. I question the ex parte attempt to prove fame. I also question the ex parte listing (without underlying support) of thirty-one former third-party marks containing EAT MORE, whose owners/users “agreed to cease and permanently desist their use of, and in several instances have withdrawn federal application to register, the marks . . . .”

Frankly, this kind of evidence seems more appropriate for an inter partes opposition proceeding.

And, from a more technical and procedural perspective, the Chick-fil-A submission totaled 85 pages (5 page Letter of Protest and 80 pages of evidence), so it appears the USPTO waived the following requirements found in TMEP 1715.04:

“A separate itemized index must accompany any submission of evidence exceeding 75 pages or the letter of protest may not be considered. Moreover, the Office encourages the use of an index in all letters of protests that contain multiple forms of evidence as its aids in the consideration of the details of all the evidence provided by the protestor. The index must be provided on plain paper (not letterhead) and contain a concise factual description of each category or form of evidence included. To maintain the integrity of the ex parte examination process, the index should not identify the protestor or its representatives or contain any arguments or persuasive language.”

Stay tuned because Bo Muller-Moore has until September 27, 2012 to respond to the USPTO’s Office Action and registration refusal based on the three Eat Mor Chikin trademark registrations.

The question for the day is not, why did the chicken cross the road, but rather, why did the chicken file an ex parte Letter of Protest with the Office of the Deputy Commissioner for Trademark Examination Policy at the United States Patent and Trademark Office (USPTO), just a few months ago?

To get to the other side of the USPTO?  To avoid an inter partes, direct and face-to-face trademark opposition with its adversary? Because we’re talking about a chicken after all, right?

Or, perhaps no cowardice or clandestine motives at all, but instead, to conserve resources by letting the USPTO do its bidding? Or maybe, better yet, to avoid fanning the flames of negative trademark enforcement publicity? Or, how about, because it can? Other possibilities?

As you may recall, back in November of last year, we covered the trademark bullying allegations against Chick-fil-A — asserting its “Eat Mor Chikin” tagline and trademarks against Vermont resident Robert “Bo” Muller-Moore’s “Eat More Kale” tagline and trademark. So did Techdirt, Brandgeek, and IPBiz, among others, none feeling any love for Chick-fil-A’s apparent concerns.

Then, a week later, the New York Times covered the dispute too, confirming the wild chicken legs of this story. So, why hasn’t anyone yet mentioned in all this coverage, Jerry Jeff Walker’s “Taking it As it Comes” recording in 1984, with the playful “Eat More Possum, God Bless John Wayne” chorus, apparently quite popular, at least in certain circles, more than a decade prior to Chick-fil-A’s earliest claimed first use date for “Eat Mor Chikin” in 1995? Hat tip to our good friend Doug Farrow for this clever observation.

In any event, lately, I’ve been wondering about the status of the “Eat More Kale” dispute, wondering whether a law suit has been filed (none that I’ve seen, to date), whether the USPTO has refused registration of Muller-Moore’s “Eat More Kale” trademark application based on Chick-fil-A’s “Eat Mor Chikin” rights, and if not, whether a trademark opposition has been filed.

So, in preparation for an upcoming March 6th Strafford Publications webinar on the ever-popular Trademark Bullying topic, I took a quick look at the status of the “Eat More Kale” trademark application, and honestly, I was not very surprised to find that the assigned USPTO Examining Attorney found no basis for refusing registration of “Eat More Kale” on likelihood of confusion grounds, writing December 18, 2011:

“The Office records have been searched and there are no similar registered or pending marks that would bar registration  under Trademark Act Section 2(d), 15 U.S.C. §1052(d). TMEP §704.02.”

In fact, Mintz Levin’s Copyright & Trademark Matters blog also noted this development in an update on December 18, 2011.

What is much more interesting from the present state of the file history– and far less common — is correspondence from the Office of the Deputy Commissioner for Trademark Examination Policy, dated four days later, on December 22, 2011, granting an ex parte Letter of Protest with these instructions to the assigned USPTO Examining Attorney:

“A Letter of Protest filed before publication has been granted. It has been determined that the evidence submitted by the protester is relevant and may support a reasonable ground for refusal appropriate in ex parte examination. Therefore, you must consider the following and make an independent determination whether to issue a requirement or refusal based on the objections raised in the Letter of Protest.”

Then the correspondence goes on to identify three prior registrations brought to the USPTO’s attention by the un-named protester: U.S. Reg. Nos. 2,062,809, 2,197,973, 2,538,050.

Hmmm, I wonder who the mysterious un-named stealth protester is, since the three registrations are for the “Eat Mor Chikin” marks owned by Chick-fil-A?

Of course, we could request a copy of the Letter of Protest and supporting evidence from the USPTO, using a Freedom of Information Act (FOIA) request, to be sure, but I’m thinking I’ll save the stamp. Indeed, I’d be shocked if Chick-fil-A were not behind the Letter of Protest submission and stealth strategy.

Actually, this is a pretty smart strategy, given the particular facts and circumstances of this dispute — if it works, and a likelihood of confusion refusal is made by the USPTO and sustained, it would obviate the need for a formal and very public opposition with Mr. Muller-Moore and his moral and financial supporters.

Of course, hind sight is always twenty-twenty, and here, if the registration refusal is made, I suspect Chick-fil-A will wish it had quietly filed the Letter of Protest before sending Mr. Muller-Moore the cease and desist letter. I also suspect the media attention on this one might have been more favorable to Chick-fil-A had the USPTO issued a refusal by the time it sent a cease and desist letter, even if it were discovered later that the refusal was prompted by a Chick-fil-A stealth filing.

So, stay tuned to learn how the assigned Examining Attorney exercises his “independent” judgment on this one, and whether he actually refuses registration of “Eat More Kale” based on Section 2(d) of the Lanham Act and Chick-fil-A’s “Eat Mor Chikin” registrations. What are your predictions?

Yesterday the New York Times ran a story on the “Eat Mor Chikin” v. “Eat More Kale” trademark dispute — the same one we covered a week ago: Eat More Anything?

A couple of quotes from the NY Times article caught my eye:

“In a statement, Chick-fil-A said, ‘We must legally protect and defend our ‘Eat mor chikin’ trademarks in order to maintain rights to the slogan.'”

So, Chick-fil-A, am I hearing right, you’re saying “there’s a chance,” of becoming generic and losing all rights in your “Eat Mor Chikin” slogan if Bo continues selling his “Eat More Kale” products?

Here’s the response from Bo’s pro-bono counsel:

“We believe it’s pretty clear, the issue of dilution and confusion aren’t really triggered here,” he said. “There’s no one out there that’s going to come forward and say, ‘I thought I was buying a Chick-fil-A product but I got this T-shirt.’”

I’m thinking both missed the mark a bit.

As to Chick-fil-A’s position, there is no legal obligation to enforce, and the risk of trademark genericide here seems even more exagerrated and remote than the risk of genericide when brandverbing — something that significant brand owners have learned to manage.

And as to Bo’s position, while I agree with the conclusion that there is no likelihood of confusion or dilution here, whether consumers confuse the products — chicken sandwiches and t-shirts — is not the test of likelihood of confusion or dilution.

Any predictions on how this fight will end?


This past weekend, with what appears to be our first lasting snowfall, I enjoyed following my daughter around the chilly alleys of downtown Minneapolis while she created for her photography class. As you can see from the moment I captured, she inspired me to create a bit too.

Thankfully I’m not being graded for my efforts.

Yet, as I reflected on capturing my daughter’s creativity in action, it occurred to me that the results of the creative efforts of our friends in the branding world are frequently watched too, but not always by those with as good of intentions as mine toward my daughter’s activities.

I’m not talking about jealous peers or green-eyed monsters or even the talented and skilled judges who review and evaluate creative submissions for industry awards. The watchers I’m thinking about have a different perspective as the IP counsel for brand owners who evaluate potential enforcement targets as new creative works endlessly flow into the marketplace.

One type or method of this kind of watching is automated and quite routine in the IP world. Many professional trademark search firms provide services allowing brand owners and/or their counsel the ability to be alerted when another files an application seeking registration of a mark, when the new creation has the potential to cause likely confusion.

Receiving a cease and desist letter after an application is filed is a pretty reliable sign that the brand owner behind the letter is watching — either the applicant directly or the penumbra surrounding the brand owner’s trademark rights, to maintain or grow a vibrant scope of rights.

Sophisticated brand owners also are well-versed in using, where appropriate, a more stealth approach of watching with the letter of protest strategy. The letter of protest option can avoid the need for direct interaction with the trademark applicant because it positions the USPTO to do the brand owner’s bidding by erecting road blocks to registration.

Of course, if the concern stems from more than registration and includes a concern of use too, then the brand owner eventually will need to unmask and reveal its concerns directly to the applicant. Having said that, having the USPTO on your side as a brand owner watching the filings of concerning marks can be a powerful tool when one decides to finally unmask and speak up.

With these IP realities in mind, are you watching or being watched or both?

Best to do the former and assume the latter.

This Bo might not have won the Heisman Trophy, he might not have played in the NFL or MLB, he might not have enjoyed a lucrative Nike endorsement deal, and he might not have been named ESPN’s greatest athlete of all time, but this Bo — the defiant Vermonter, a/k/a Bo Muller-Moore, knows how to defend his “Eat More Kale” trademark and turn a trademark bully into fried chicken:

As you know, we have been following very closely — and very critically — for more than three years now, Chick-fil-A’s efforts to prevent registration of Bo’s EAT MORE KALE trademark, based on Chick-fil-A’s federally-registered rights in the EAT MOR CHIKIN fast-food slogan:

This dispute really became for me the poster-child example of trademark bullying, and keep in mind, I frequently report on media allegations of trademark bullying, but I have rarely agreed with the pejorative label, for a variety of reasons.

So, Bo, hearty congratulations to you!

What do you suppose was the deciding factor in Chick-fil-A chickening out and deciding not to pursue the filing of a formal Notice of Opposition with the USPTO? Was it, Governor Peter Shumlin’s support? Your able pro-bono legal team? Your successful Kickstarter campaign? Your deft use of the social media shame-wagon? The USPTO finally seeing clearly? Or perhaps the persistently persuasive DuetsBlog coverage?

Or, will we need to await completion of the promised documentary film, to know from Bo?

Either way, Chick-fil-A finally appears to have found a sense of humor, sending this email in response to a Huffington Post inquiry: “Cows love kale too!”

Let’s hope the cows have learned a lesson about straying past the trademark fence on the farm!

It’s that time of year again, the Minnesota fishing opener is upon us this weekend, so Rapala is sporting its new billboard in the Twin Cities metro area, as shown below:

“Winner, winner, walleye dinner,” is an obvious play on the far more frequently uttered “winner, winner, chicken dinner” positive outcome phrase, that apparently derives from early casino dining experiences. In fact, Ballys has decided to cash in on this phrase by obtaining a federal registration covering the phrase for gaming machines.

And, last year, Raising Cane’s, a fast food chicken restaurant chain (one that my kids strongly prefer over Chick-fil-A, by the way) obtained a federal registration for the same phrase in connection with restaurant services.

Yet, less than two months ago, an intent-to-use application for “Winner! Winner! Grouper Dinner!” was filed by Team Lobo in Naples, Florida, for t-shirts, so I suspect we won’t see Rapala’s above tagline appearing on t-shirts this year. For a comparison of nutritional facts concerning grouper v. walleye, see here.

Curiously, last year Rapala expressly abandoned its “Bass Friends Forever” t-shirt trademark application, shortly after it was published for opposition, leaving us to wonder who may have added some tension to their fishing line? Perhaps PVH Corp, based on these rights in BASS?

So, here’s my suggested Rapala billboard tagline for next year: Eat More Walleye.

What do you suppose Chick-fil-A would have to say about that?

In case you’re wondering about status of the Eat More Kale dispute — the USPTO has been sitting on Bo Muller-Moore’s 71-page Office Action Response for eight months now, so stay tuned.

Eating more isn’t necessarily a bad thing. Yeah, I saw the documentary Super Size Me; admittedly, I haven’t viewed certain fast food the same way since, but it all depends on what it is you’re eating, right? Common sense dictates that if it’s good for us, we should eat more of it. Indeed, Lexi Petronis of Glamour writes this about the 2010 U.S. Dietary Guidelines“In fact, several of the guidelines tell us to eat more–more dairy, more seafood, more fruits and veggies.WebMD adds a few items to their own “eat more” listing as well:

















Now, when a specialty fast food restaurant chain and trademark owner adopts a tagline that includes such a basic and competitively necessary message as “eat more” — of the core food it sells — at least these trademark questions necessarily arise: is the tagline even distinctive (does it point to a single source) and, if so, how strong and broad can the rights be? I’d also add, is dilution-style fame even a possibility for such a tagline? 

As you know, we’ve been monitoring, scrutinizing, and breaking news on Chick-fil-A’s efforts to prevent federal registration of Robert “Bo” Muller-Moore’s “Eat More Kale” tagline and trademark, based on Chick-fil-A’s “Eat Mor Chikin” tagline and trademarks — still no federal district court lawsuit, as far as we know. And, as you will recall, I’ve expressed some serious doubts about Chick-fil-A’s claim of likely confusion between the “Eat Mor Chikin” and “Eat More Kale” taglines and marks.

To me, what makes Chick-fil-A’s tagline distinctive is not the words alone, but the seriously mispelled words in the black-ink dripping style, along with the conniving cows who are determined to have fast food customers eat more chicken, and less beef. Had Chick-fil-A adopted a properly spelled tagline “Eat More Chicken” without these unique elements, it is hard for me to imagine the USPTO would have registered it without a serious showing of acquired distinctiveness, and that seems highly unlikely. It would have been like Wendy’s trying to own “Eat More Beef” as opposed to the vastly more creative and distinctive “Where’s the Beef?” tagline.

Nevertheless, the USPTO Examining Attorney assigned to Muller-Moore’s “Eat More Kale” trademark application has now reversed herself (hat tip to Corsearch’s Trademarks + Brands Blog), on the talons of of a successful Letter of Protest (by the way, Geri Haight of Mintz Levin recently did a nice write-up on trademark Letters of Protest), presumably filed by Chick-fil-A, and the USPTO now appears devoted to according the tagline an enormous scope of rights, almost treating it as if Chick-fil-A’s mark were “Eat More” and not the narrower “Eat Mor Chikin”.

So, I must ask, should yours truly eat more crow or humble pie for calling Chick fil A’s trademark allegations regarding “Eat More Kale” baseless?

Or, will counsel for “Bo” be able to overcome the registration refusal for the distinct pleasure and certainty of litigating at the TTAB and having the mark formally opposed by Chick-fil-A?

And what do you make of these additional “eat more” examples? Don’t they make a claim of dilution-style fame difficult?


An allegation of trademark bullying is in the news again, this time Chick-fil-A is the accused Goliath — charged with overreaching in its enforcement efforts relating to intellectual property rights in the very clever and creative EAT MOR CHIKIN a/k/a The Cow Campaign and advertisements:

Perhaps you’re wondering what aspect of the Cow Campaign Chick-fil-A is seeking to protect?

Perhaps you’re also wondering who David is, right?

Turns out “David” answers to “Bo” and he lives in Vermont, where farmers grow a lot of kale.

I’m told that if we were all to eat more kale, we’d all be more healthy.

There is a lot of protectable intellectual property in Chick-fil-A’s very creative and clever Eat Mor Chikin & Cow Campaign, but trademark infringement allegations relating to Robert “Bo” Muller-Moore’s Eat More Kale slogan appear — to me — to be baseless:


The Burlington Free Press coverage is here, and Seven Days coverage is here.

Anyone out there willing to take Chick-fil-A’s side on this one?

Continue Reading Eat More Anything?

GarnerWhatsinYourWalletLast year, in my post entitled What’s in Your Wallet, a Cafe?, I had this to say about the iconic Capital One tagline:

“Since 2000, Capital One Financial — the nation’s largest direct bank — has been promoting its credit card services by asking What’s in Your Wallet? Three years later it began promoting banking and other financial services using the same iconic tagline, slogan, and question. By 2011, it had achieved so much traction that What’s in Your Wallet? was inducted into the Advertising Walk of Fame as one of the 16 Greatest Slogans in History.”

It seems as though, whenever a brand owner comes up with a truly inventive tagline or slogan, it is almost predictable and inevitable there will be others who follow along, looking for a short cut, those willing to take a free ride on the underlying creative branding concept.

For example, when the Got Milk? campaign came along and enjoyed the vast success it did for so many years, even years later, it has almost become cliche for others to replace milk for whatever they happen to be selling, while using the remainder of the inventive branding concept:

gitmilklogoSo, there was Got Wine? Got Water? And, there was and is a multitude more Got [Whatever]? marks, far too many to prevent or stop, I’m sure, but what about setting some realistic scope to the rights and drawing some reasonable trademark lines in the sand?

For example, when Otis Spunkmeyer registered Got Cookies? as a trademark for cookies, it never apparently thought twice about the relatedness and complementary nature of cookies to milk, and the California Milk Processor Board surprisingly never objected. Instead, it simply registered its Got Milk? slogan for the very same goods and now coexists.

Putting legality aside for a moment, is one sign of a successful tagline the spawning of others that copy the underlying creative concept and adapt it to their particular business?

Perhaps. Following Capital One’s introduction of What’s in Your Wallet? came What’s in Your Tortilla?, followed by What’s in Your Bowl?, and then What’s in Your Bag?, What’s in Your Backpack?, What’s in Your Cup?, What’s in Your Garage?, What’s in Your Attic?, What’s in Your Toolbox?, What’s in Your Water?, What’s in Your Beef?, What’s in Your Purse?, and What’s in Your Jacket?, among a multitude of others.

It’s fascinating to me that as much as Capital One must spend on its ad budget, and celebrity endorsements (Jennifer Garner and Samuel Jackson), it appears to view its trademark rights as razor thin, as it is almost completely absent from any TTAB enforcement activities, at least as a plaintiff, with none involving the What’s in Your Wallet? tagline and trademark, except this extension of time to oppose What’s in Your Jewelry Box?, but is now registered, for “providing monetary exchange services, namely, exchanging precious metals of others for money,” and this extension of time to oppose registration of What’s in Your Vacation? for “customer loyalty reward program featuring the accumulation of points by the program members and the subsequent redemption of points towards gifts and discounts in air travel, hotel lodging, restaurants, home appliances, and other services and products.”

So, no surprise now that Capital One has taken no apparent action against Rosland Capital’s trademark registration for the tagline What’s in Your Safe? for “telephone ordering services in the field of precious metal ingots and numismatic coins” — the first registration it obtained was not stated in the form of a question (What’s in Your Safe) for “retail store services featuring precious metal ingots and numismatic coins; on-line retail store services featuring precious metal ingots and numismatic coins; retail catalog ordering services via telephone featuring precious metal ingots and numismatic coins.” Capital One didn’t even put in an extension of time to oppose either of those or What’s in Your Pocket? for a credit card holder, leaving me to wonder will any mark other than an identical one get Capital One’s serious attention?

Apparently not, given this one (pun intended): What’s Not in Your Wallet? for “on-line retail store services featuring clothing, gifts and videos.”

Of course, this is not what I expected to find when a Rosland Capital commercial caught my eye this weekend and prompted me to dig for some trademark and blogging gold ingots. I didn’t realize when I heard celebrity William Devane ask What’s in Your Safe? at the end of a Rosland Capital commercial (in a way that reminded me of the nearly identical final question Jennifer Garner keeps asking in her Capital One commercials), I had no idea that the creativity in the concept of the Capital One tagline was like the cow already out of the barn, down the road, and far away from the dairy farm.

Speaking of cows, why did Chick-fil-A think it could stop Bo Muller-Moore’s Eat More Kale? based upon its rights in the distinctive, but very different, Eat Mor Chikin campaign and mark?

Back to Capital One, for our creative types out there, what is the rationale for doing nothing about the multitude of taglines that What’s in Your Wallet? has spawned, especially those in the financial services field and those for complementary products?

Trademark types, do these recent Capital One intent-to-use filings (What’s in Your Tablet? What’s in Your Phone? What in Your Pocket? What’s in Your Digital Wallet? What’s in Your Smart Wallet? signal the possibility of enforcing the tagline rights more broadly?

– Draeke Weseman, Weseman Law Office, PLLC

Intellectual property enforcement continues to make news, and new solutions to curb abusive enforcement – i.e. trademark bullying, patent trolling, and copyright trolling – are being proposed regularly. Central to these solutions is the idea of a “fast-lane” that kicks bad claims to the curb before the bullied or trolled party has incurred significant legal costs.   For example, in copyright infringement cases, a motion for judgment on the pleadings may succeed very early in the process if fair use is obvious. The ability to end frivolous litigation early is critical to a balanced intellectual property system.

Although I haven’t seen it discussed much, one possible means for putting an early end to frivolous trademark litigation is for the bullied party to pursue dismissal on the grounds that the trademark bully has not met the required pleading standard of “plausibility” set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) and extended in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009). (For the non-lawyers reading DuetsBlog, “pleading standard” refers to the threshold content that is required in a complaint so that a plaintiff can have access to the court). My opinion is that claims that deserve the trademark bullying label are not likely to meet the Supreme Court’s pleading standard and, therefore, should be dismissible. Early dismissal of bad trademark claims, if more routinely sought and granted, could provide bullied parties with relatively quick and cost-efficient relief and could be another tool in the toolkit for practitioners faced with responding to abusive intellectual property enforcement.

First, a quick summary of the change in pleading standards. From 1957 to 2007, civil litigants followed the “mere notice” pleading standard of Conley v. Gibson, 355 U.S. 41 (1957), wherein the Court held that a complaint need only state a “conceivable” set of facts to support its legal claims. That all changed in 2007, when, in Bell Atlantic Corp. v. Twombly, the Court replaced that standard with a stricter “plausibility” standard: a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Because the Twombly case involved a specific set of facts involving allegations of anti-competitive behavior, the courts were confused about whether Twombly’s rule should be extended to all civil litigation. So, in 2009, in Ashcroft v. Iqbal, the Supreme Court confirmed that the new, stricter pleading standard of “plausibility” applied to all civil litigation.

According to the Supreme Court, in order to state a claim that is “plausible on its face,” a plaintiff must string together facts that amount to more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Legal conclusions can provide the framework for a complaint, but are insufficient on their own because legal conclusions are not entitled to an assumption of truth. Asking for plausible grounds “calls for enough fact to raise a reasonable expectation that discovery will reveal evidence” of unlawful conduct.

So, do trademark bullies bring plausible claims? In my view, no. And I think this view is often echoed in the media coverage of trademark bullying cases, where we see the sentiment expressed time and time again that “there’s no way anybody is confused about X and Y.” Those of us following this issue can all remember Vermont Governor Peter Shumlin’s public message to Chick-fil-A: “If you think that Vermonter’s don’t understand the difference between kale and a chicken sandwich, we invite you to Vermont and we’ll give you a lesson about the difference between kale and a chicken. There are some very distinct features . . . ” This seems to me to be a layman’s way of saying that Chick-fil-A’s claim of trademark infringement was just not plausible on its face.

Like Chick-fil-A in the Eat More Kale dispute, trademark bullies regularly and aggressively claim likelihood of confusion without actually alleging enough factual matter to make that claim plausible, rather than merely conceivable. Trademark bullies often claim a likelihood of confusion based entirely on the similarity of the marks, while ignoring the other elements necessary to establish trademark infringement – strength of the mark, relatedness of the goods, overlapping trade channels, bad faith intent, etc. In doing so, trademark bullies might show a conceivable claim – the marks are the same, so conceivably there could be confusion – but they lack the extra stuff necessary after Twombly to get over the hurdle of plausibility. In other words, the claim isn’t plausible because despite similarities in the marks, the mark is so weak or the goods so unrelated that there is not “a reasonable expectation that discovery will reveal evidence” of trademark infringement. I think if more of the bad trademark claims we see were actually held up to this standard, more of these claims would fail.

Moreover, courts have ample discretion to decide whether a claim is plausible, and thereby to decide whether to subject a bullied party to the burden of discovery. In Iqbal, the Supreme Court held that “[u]ltimately, determining plausibility is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Courts can look at the success or failure of prior trademark claims and rely on their own common sense about whether there really is any unlawful conduct that will be discovered. This might be a difficult subjective decision, but judges should not shy away from that responsibility.

As a matter of public policy, upholding the plausibility standard is important. Comments from the public, as part of the USPTO’s investigation into trademark litigation tactics in 2011, revealed the following views:

Aggressive tactics used by overreachers presents a problem for the entire intellectual property community by threatening legitimate activities and clogging the legal system with invalid claims.

[D]iscovery and deposition processes were too costly for many small businesses and provided a means for a party to thwart progress in a case and to drain resources from an adversary. . . .

[S]mall companies and individuals are placed in a difficult position where surrender of valid trademarks that are being lawfully used is the only rational financially-feasible option available.

It seems to me that one way to reduce the impact of frivolous trademark litigation is to demand that trademark plaintiffs actually meet the plausibility standard set forth in Twombly. Trademark practitioners should challenge trademark bullies under Twombly and expose the implausibility of claims made by trademark bullies.