Trademark Infringement for Social Good?

The Nonprofit Quarterly recently posted an article accusing Neiman Marcus of using harsh legal tactics to threaten a nonprofit thrift store that was using its registered trademark, LAST CALL.  The article emphasizes that the thrift store donates all of its profits to a local women’s shelter while making disparaging remarks about Neiman Marcus.   However, it does not provide readers with a fair understanding of the issue or considerations, in my opinion, so I posted the following response:

Companies need to protect their trademark rights, and sometimes that may require confronting a nonprofit organization who may be using a similar mark in a manner that is socially beneficial.

Trademark laws exist to protect those who seek to protect their intellectual property. As an attorney who regularly counsels nonprofits on the importance of protecting their trademarks, I also advise my clients to avoid infringing on others’ marks, which often includes trademarks owned by for-profit entities. The article offers little to help readers evaluate the merits of the infringement claim, and instead relies on emotion to lead its readers to a negative conclusion.

Trademark owners have a responsibility to enforce their trademark rights or risk diluting their value and creating confusion in the marketplace. For-profits should make objective and thoughtful decisions about which actions to pursue, and doing so might occasionally require confronting a nonprofit. The article at least acknowledges that Neiman Marcus is seeking to work out an amicable solution, which demonstrates their good faith approach to the situation.

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