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Abstract

Charity is big business in the United States. In 2015, private individuals or entities donated over $350 billion, which accounted for approximately two percent of the gross domestic product in the United States. Even though this seems like big money, these donations were split among over 1.5 million organizations. And each year, the number of charitable organizations grows and therefore, the competition for public donations increases. In part to succeed in such competition, some charitable organizations have turned to branding and trademarks as a way to differentiate their entities and to encourage donations. Drawing from the for-profit branding and trademarking strategies, some charitable organizations have become valuable brands in their own right. Unfortunately, however, the similar phenomenon of trademark bullying has also seemed to have spilled over from the for-profit sector into the nonprofit one. This is arguably an even more nefarious problem than in the for-profit sector because nonprofits are supposedly on a mission to help society. If, in their goal to raise more money in performing their mission, these charitable organizations are actually harming society through the costs associated with enforcement and in reducing the number of charitable entities, then the work of these organizations seems to be counterproductive. Not only that, but in shrinking the market of charitable organizations, larger organizations are able to control which causes society should care about, leaving many other worthy causes underfunded or without funding.

This Article posits that much of the blame for over-enforcement of trademark rights may, in large part, be placed on judicial interpretations of U.S. federal trademark law. Although federal courts are not united, the more restrained approaches to charitable trademarks courts have taken in the earlier part of the Twentieth Century appear to have shifted over the last few decades towards greater protection, particularly if the trademark holder is a well-established nonprofit. At the same time, case law appears to require an enhanced level of control over such charitable trademarks. Both strands in federal case law may be encouraging over-enforcement of trademark law, both formally and informally. In order to reduce bullying, this Article proposes a number of solutions, including a judicial heightening of certain pleading requirements and encouraging the responsible public shaming of charitable trademark bullies. In limiting the types of trademark infringement cases that could be brought and drawing to the public’s attention those cases that overstep the legal boundaries, charitable entities should hopefully feel freer to not worry about over-enforcing trademark rights and instead, focus on their missions to better our world.

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