Q: Is that for every client or do you mean for the smaller ones?
A: I don’t know of a trademark or copyright client who is not
extremely sensitive to enforcement costs. I have small client
companies and Fortune 100 company clients. It’s a big deal to all
of them.91
ii. The Importance of the IP at Stake
Another critical enforcement factor identified by almost all of
the interviewed lawyers was the importance of the particular IP to the
client. As these lawyers explained, enforcement efforts were much
more likely to be undertaken against potential targets when the
alleged infringement involved the client’s “core” IP, or “crown
jewels,” as several lawyers put it.92 One trademark lawyer working inhouse
for a Fortune 100 food products company explained:
A: It’s too expensive to protect everything. We have a hierarchy of
brand protection. First, protect the house brands that we use again
and again. We have a family of related brands, so we enforce these
aggressively. Next, our best-sellers. We have a few brands that
have a long history of sales and goodwill—this is the stuff people
know us for. We’ll do anything to protect these.93
iii. Targeting Competitors
Second to cost, the interviewed lawyers most often identified
target characteristics as highly influential in enforcement decisions.
Both the lawyers and their clients stated that enforcing rights against a
competitor was a high priority in most circumstances.94 As one lawyer
stated:
A: It makes a big difference if it’s a competitor, if the infringer is a
competitor of my client.
Q: Any client?
A: Most.
Q: Why is that?