awareness of the proper scope of IP rights may change over time.
This theme was suggested by several lawyers who opined that certain
clients “never used to care” (as one lawyer put it) about their IP
assets, but had more recently become increasingly aware of the
potential value of those rights, particularly when dealing with
business competitors.77 While this theme was not fully probed in most
of the interviews, it does highlight the fact that the process of
“naming” and “blaming” can be significantly influenced by the IP
owner’s evolving understanding of the nature, scope, and value of
trademarks and copyrights. The lawyer’s role in shaping such client
understandings of IP rights was less clear from the interviews. Most
of the study lawyers described their roles in identifying potential
disputes as either limited or indirect. The lawyers most often
described that, typically, clients come across a potential infringement
claim and contact the lawyer for advice. Of course, over time, lawyers
may influence how clients perceive what their IP rights are and what
constitutes a violation of those rights in the course of educating
clients about which disputes are worth pursuing and which are not.
This topic is the focus of the next section.
2. Selecting IP Targets: When Is Enforcement “Worth
It”?78
A major part of the study interviews focused on understanding
how lawyers advise clients regarding whether a potential trademark or
copyright infringement case merits enforcement efforts, or, as one
lawyer put it, “is it worth it to go after this guy?” All of the lawyers
agreed that it does not make sense from a legal or business standpoint
to attempt to assert every potential trademark or copyright claim.
Thus, a central part of the questioning on this topic probed the factors