—The Enforcement Backlash
Insight: The Proportionality Test Worth Running Before Any Enforcement Action
Author: IMB Editorial Team
IMB Journal – International Marketing Board
Volume 1 | Issue 10
October 2026
The Proportionality Test Worth Running Before Any Enforcement Action
Legal teams evaluating a trademark claim are trained to ask a fairly narrow question: is a consumer likely to be confused between these two marks. That question is necessary, but it says nothing about a second question that determines whether the enforcement decision becomes a brand story rather than a quiet legal matter: what does this look like once it’s public, and does the size and sympathy of the target change that answer.
A useful proportionality test runs through three quick checks before any claim against a small or clearly sympathetic target moves forward. First, does the target have the resources to comply quickly and quietly, or will a lawsuit be their only realistic way to respond, given that a small, under-resourced business facing a federal suit from a well-funded company has little choice but to either fight publicly or shut down, and neither outcome tends to look good for the company that filed the claim. Second, is there a narrower path, a cease-and-desist letter, a direct conversation, a negotiated licensing arrangement, that achieves the same legal protection without requiring a public lawsuit as the opening move. Third, and this is the question most often skipped entirely, has anyone outside the legal team actually looked at the two marks side by side and asked whether an ordinary customer would plausibly confuse them, rather than relying on a technical similarity analysis that a court might accept but the public will not find persuasive.
None of this argues against enforcing legitimate trademark rights. It argues for treating the decision to do so publicly and aggressively, against a target with far fewer resources and far more public sympathy, as a decision that belongs in the same room as the brand and communications team, not one that reaches them only after a complaint has already been filed and a local news crew has already shown up at the smaller company’s door.
This concludes our three-part series on trademark enforcement and brand reputation. Read Part 1, “When Protecting Your Brand Becomes the Bigger Threat,” and Part 2, the Buc-ee’s case study, in this issue.