to what effect these rights are exercised in the everyday practices of
IP owners and their lawyers. To date, however, IP scholarship has
focused virtually no attention on this critical arena of everyday
practice.
This Article presents findings from a qualitative empirical study
of the trademark and copyright disputing process outside of court,
based on original data derived from semi-structured interviews with
experienced IP attorneys who advise clients on how to enforce their
rights. This research is one of the first studies to examine how
trademark and copyright claims are actually enforced in practice.
One significant finding from this study is that “repeat player”
trademark and copyright owners (and their lawyers) knowingly assert
weak IP claims at times—precisely because it works, as enforcement
targets are unable or unwilling to resist claims that may lack legal
merit due to the costs and uncertainties of threatened litigation.
Moreover, the lawyers who assert weak IP claims have ready
practical and ethical justifications for their actions. This study also
suggests that legal sanctions directed at deterring over-reaching IP
enforcement are unlikely to be effective because most such overreaching
occurs in informal disputing processes outside of the legal
system.