Trolls and Your Intellectual Property
The Origin of Trolls
Trolls first make an appearance in old Norse mythology and poetry dating from around the 9th Century[1]. They are depicted as mythical creatures who live in a family group and by and large stick to themselves. Trolls in this first form are often cast as mountain dwellers or ghosts and are known for being shambling and stupid.
Over time the representation of trolls in literature evolved and trolls began to interact more with the human world around them. Trolls are now often a trope for trickery in fiction – doing their best to outwit the humans they encounter.
Perhaps the most well-known troll is the one that lives under the bridge in the story of The Three Billy Goats Gruff[2]. In this fairy tale we follow the trials of a group of three goats trying to cross a bridge to greener pastures.
The first and smallest goat is challenged by a troll living under the bridge who threatens to eat him. The goat escapes by assuring the troll that larger and meatier goats are following soon. The second goat soon follows, and escapes using the same argument: “don’t eat me, the next goat is much bigger!”.
The troll’s greed for a bigger meal means the first small goat and second middle-sized goat are allowed to pass.
The third and largest goat now arrives and is stopped by the troll who intends to make a well-deserved meal of this goat. In a move unanticipated by the troll, the billy goat presents its horns and goes on the attack.
Having butted the troll off the bridge, the goat continues to the rich fields beyond to live happily ever after, leaving the troll bruised and just as hungry as ever.
We wonder: what lessons can the intellectual property rights owner learn from The Three Billy Goats Gruff?
The IP Troll
First, we need to re-define the troll for the world of intellectual property (IP).
The IP troll comes in a variety of guises:
- The trade mark troll is known to register trade marks without ever intending to use the trade mark for themselves. This troll then sues other genuine businesses who use its trade mark. The trade mark troll is also found in first-to-file countries like China and Taiwan. These specialised trade mark trolls take the opportunity to register trade marks well known in other markets before the genuine owner can take that step. The genuine owner then finds they cannot use their trade mark in troll’s countries without payment of an exorbitant fee to the trade mark troll.
- The patent troll focusses on its patent rights in inventions that are often incorporated into products or means of making products. The patent troll will secure patent rights and then wait until its patent is used by other traders. The troll then seeks to enforce its patent rights by suing for far beyond the patent’s actual value. The patent troll can seek damages for years of patent infringement by waiting until the timing is right to sue traders who have built up a business oblivious to the fact someone else holds patent rights for key technological elements.
- The copyright troll tries to enforce copyrights it owns purely for the purposes of making money through litigation. The copyright troll is particularly tricky as the IP rights it claims are often not registered and cannot be searched. Copyright exists as a right in artistic and literary works. Often those works can be accessed from online platforms and are used by other traders for their businesses. The copyright troll is known to be opportunistic and will sit on its rights without any intention to sell them. Instead, the copyright troll waits until the copyright work is used and then aggressively sues for infringement.
What’s so Bad About the IP Troll?
An IP troll impedes innovation and progress by limiting expansion opportunities for genuine businesses and tying up time and resources in litigation.
As a general rule, registered IP rights are meant to provide commercial entities with protection for elements, such as trade marks or inventions, so that the owner can operate a business with the security of exclusivity in these elements.
Registered IP rights which are not used in connection with a business, and which have been secured with no intention that they will ever be used in connection with a business, clutter the register. These unused registered IP rights offer no benefit for anyone other than the IP troll who is occupying a space purely to keep other traders out.
How to Build a Bridge to IP Success and Defeat the IP Trolls
Step One: Know your enemy!
The IP troll’s power comes from invisibility until you are challenged with its rights.
The best way to know whether an IP troll could be in your future is to conduct proper searching of relevant IP Registers. A search will let you identify what relevant rights already exist. Being able to plan your path knowing what rights are already established will allow you to avoid trouble.
Found IP rights that might be an issue? What next?
Step Two: Decide what sort of approach would work for you.
Risk Avoidance (aka – the smallest goat) – Finding registered rights that cross over what you want to do also provides a good idea of the scope of rights to avoid in order to minimise the risk of objection. Changing focus to something outside of the scope of existing registered IP rights, or making an effort to design around what is already registered, may allow a trader to avoid attack entirely by simply not being in the IP troll’s path.
Risk Management (aka- the middle-sized goat) – Having found potentially conflicting register rights, there is also the option of taking steps to mitigate risk rather than avoid it entirely. Tools to consider early in a business plan to mitigate risk could include setting up defences in anticipation of objection or investigating licencing schemes with the registered owner. It may be that a bit of money early in the business on proactive negotiating an agreement will mean that you will end up on the right side of the IP bridge, and not a meal for the IP troll.
Going on the Attack (aka – the biggest billy goat gruff) – For the aggressive, finding registered IP rights in the hands of what looks like IP troll may result in a call to arms. If you are committed to your business path, you can always take the IP troll head on. In many countries you can take action to remove trade marks for non-use, or file for invalidation of trade marks or patents. If the IP troll no longer holds any rights, then it cannot impede your progress.
Step Three: Don’t forget your own original ideas and unregistered rights.
It is important to investigate and understand the scope of your own rights and ideas early on in a business in order to plan for the future.
Copyright exists in original works and is typically owned by the creator of those works, or the party who has commissioned it. If you have created your own original work, then a claim to copyright infringement should not succeed.
What to Take Home about IP Trolls
A unifying feature of the IP trolls is ownership of IP rights with the intention to aggressively attacking other traders.
The IP troll makes money by holding what it owns to ransom.
Defeating the IP troll starts with originality and diligence. By being true to your own business path, creating and understanding your own IP, and most importantly checking your path is free to follow, IP trolls can be defeated and you can cross the bridge to IP success.
Need help with IP trolls? Contact us today.
[1] Old Norse poem Skáldskaparmál dating from the 9th Century records a conversation between troll and poet Bragi Boddason.
[2] Attributed to a collection by Peter Christen Asbjørnsen and Jørgen Moe first published between 1841 and 1844.