large part of the day-to-day enforcement practices of trademark and
copyright lawyers. Even filed lawsuits typically result in settlements
well before trial.63 Furthermore, trademark and copyright lawsuits that
are adjudicated to a resolution in federal court are statistically rare.64
As many of the lawyers in this study stated, “most cases settle.”
Indeed, when asked about their IP careers and practices, the lawyers
for this study—who were generally very experienced and quite
prominent in the IP field—indicated that they had little trial
experience. Most of these lawyers identified “litigation” as one of
their areas of practice. When probed as to what this meant, most of
these lawyers stated that they filed proceedings before the TTAB or
filed lawsuits in trademark and copyright cases and engaged in some
pretrial discovery and motion practice in both forums.65 But very few
had tried a trademark or copyright case to a judge or jury in their
entire careers.66 Five of the study lawyers had tried at least two such
cases in their careers. But most of the daily practices of these
experienced IP lawyers did not involve court activity or other
adjudication, but rather counseling and negotiation.
Thus, understanding enforcement of trademark and copyright
claims requires understanding how those claims arise, become
disputes, and result in settlements—mostly outside of (albeit