influenced by) formal court proceedings and understandings of
substantive IP law.
B. “Naming, Blaming, and Claiming”: Mapping and
Understanding Trademark and Copyright Enforcement in IP
Law’s Shadow
This section draws on insights developed by Felstiner, Abel,
and Sarat in their influential 1981 article “The Emergence and
Transformation of Disputes: Naming, Blaming, Claiming . . . .”67
Their article provides a useful framework for analyzing disputing
behavior in stages, especially the under-examined earlier stages of
disputes that occur outside of formal legal institutions and are
typically under the radar of both scholarly analysis and legal system
scrutiny.68 “Naming” is the initial stage of a dispute.69 This stage
occurs when the victim becomes aware he has suffered an injury or
violation of rights.70 The second stage of disputing is termed
“blaming,” where the victim assigns blame to a particular target for
the harm he has suffered.71 The third stage is “claiming,” in which the
victim gives voice to the grievance and demands a remedy.72
The main contribution of the Felstiner et al. framework is to
provide a way to describe and analyze process of how disputes
emerge and how and why they develop through each stage. This
framework also highlights the role of agents (such as lawyers),
cultural factors (such as ideologies of rights), and even psychological
factors (such as disputants’ own sensibilities) in shaping the
development of disputes.
The research interviews for the present study sought to
understand how trademark and copyright owners became aware that
their rights had been violated and the factors that influence whether
and how those rights are enforced.