“aggressive” enforcer of IP rights.122 The lawyers stated that having
such a reputation itself had a potential prophylactic effect of deterring
would-be infringers and thereby strengthening the owner’s IP rights.
The lawyers also stated that they believed opposing counsel who
represented targets in trademark and copyright dispute negotiations
took them and their clients more seriously when opposing counsel
understood that the IP owners were regular enforcers of their rights.
In fact, several of the lawyers stated that they made sure to stress their
clients’ previous experiences—and successes—in IP enforcements in
and out of court during the course of negotiating with opposing
counsel. One lawyer explained as follows:
A: I tell the other side how my client, [client name], has done this
before, that it takes this seriously. They know who [client name] is,
but doesn’t hurt to remind them.
Q: Does that help? How does it?
A: It seems to. All I can say is that opposing counsel seems to take
this client seriously. My last case, the guy says “I get it, we both
know you’re serious, let’s figure out what will make this go away.”
So you can maybe read into that, but my point is I do feel it’s
effective and helps.123
Another lawyer put it similarly:
Q: Do you tell the other side your client has enforced its rights
before? I mean during the phone call to follow up on the letter, the
demand letter, like you just mentioned.
A: I think that usually is something I say. I generally say it in the
letter, too.
Q: Why do you do that?
A: To keep them focused on the fact that my client takes its IP
seriously and won’t go away until we get a settlement. He needs to
tell his client this won’t go away by ignoring us, we mean
business