A: Why assert a weak claim? (laughs) It works. It sometimes
works.
Q: How? You say it works, tell me how.
A: You’d maybe be surprised how often people, not just
individuals, but companies, even bigger ones, don’t want to deal
with this. If you show them your client is willing to litigate this if
need be, they don’t want to spend the money to call your bluff.
Small companies can almost never afford to resist a really
aggressive client. That’s, again, that’s why I told you a reputation
for being aggressive can help. Nobody thinks [company name] is
afraid to sue you, so better to settle.111
The interviewed lawyers provided a number of examples where
they believed they had been able to successfully assert weak
trademark or copyright claims against a target. Often these instances
involved targets who were individuals or relatively small companies.
Perhaps the most over-the-top example involved an 11-year old girl
who (with her parents) operated a very small web-based doll business
that allegedly used an infringing trademark of a large high-tech
company. This lawyer admitted that the legal claims against the girl
and her family were “probably pretty weak,” but insisted that there
was nothing improper in sending a very strong demand letter that
threatened litigation if the allegedly infringing trademark was not
immediately removed from the site (it was). This same lawyer
identified another client company that had been taking an extremely
aggressive stance and filed lawsuits in many trademark enforcement
actions. The company also used a tactic of getting targets to agree to
enter stipulated judgments in court that contained self-serving
statements about the plaintiff’s valuable trademark and the amount of
damages caused by the alleged infringement. The lawyer explained
that the courts sometimes entered the stipulated judgments as-is,
providing the trademark owner with a court judgment that could be
shown to future enforcement targets to help persuade them to
capitulate.
As some of the interview testimony indicates, aggressive and
bullying enforcement tactics can work and are sometimes part of the
IP owner’s overall enforcement strategy. They are effective, in part,
because many targets do not have the resources to defend a trademark
or copyright claim on the legal merits in court. Even if they have such