they often agree to take it down themselves.126
This notion of balancing came up in discussing both trademarks
and copyrights. It reflects the interviewed lawyers’ awareness that
there are risks to enforcement efforts in terms of costs and unwanted
publicity that can harm a client’s reputation and undermine the
goodwill some clients generate with their IP. These lawyers discussed
how they and their clients develop a sense of how best to make this
balance work given the need to both disseminate the trademarks and
copyrights publicly in order to increase their value, while at the same
time negotiating ways to limit uses of this IP by others that may
undermine that value.127
V. CONCLUSION
The pretrial IP disputing process is an under-studied and undertheorized
arena of legal activity despite the fact that it is where most
trademark and copyright enforcement takes place in everyday
practice. This study of how and why IP lawyers advise their clients in
trademark and copyright disputes is one of the first efforts to map and
explore these everyday practices and their likely effects on free
speech, creativity, and competition in the marketplace.
Perhaps the most striking finding of this study is that trademark
and copyright lawyers and their clients sometimes enforce admittedly
weak IP claims precisely because it can be an effective strategy with
few downsides. As this study shows, aggressive trademark and
copyright enforcement efforts often work, as enforcement targets
frequently choose to capitulate or settle rather than resist claims on
the legal merits, likely due to the costs and uncertainties inherent in IP
litigation. Thus, this study supports the thesis that trademarks and
copyrights can be and often are over-enforced in everyday legal
practice. The lawyers in this study had few ethical concerns about
enforcing even weak trademark and copyright claims, as the
uncertainties of law and an asserted ethical duty to zealously advocate
client interests were readily invoked to justify aggressive policing of
IP rights. While this study also delineates some of the perceived