resources, they often choose not to spend those defending threatened
or actual lawsuits. Moreover, as explained by the interviewed
lawyers, trademark and copyright infringement cases tried in court
can involve highly fact-specific and somewhat subjective analysis,
and legal defenses are not particularly clear or consistently upheld.
Targets, therefore, often acquiesce to enforcement demands because
of the legal uncertainty that IP litigation entails. What this also
suggests is that such practices, even if they do not occur in the
majority of enforcements, can have a significant chilling effect on
free speech and harm competition, as many IP scholars assert.112
C. Lawyer Ethical Decision Making: Justifying Enforcement of
Weak IP Claims
Aggressive trademark and copyright enforcement can sometimes
be very effective, according to the interviewed lawyers. But does
aggressive enforcement raise any ethical concerns? A number of the
interviews addressed this issue extensively. The questioning on this
topic typically opened with a discussion of whether a particular
enforcement effort or tactic that had been described had been
“proper.” Sometimes the question was framed as to whether it had
been “ethical.” Either way, the interviewed lawyers had ready
justifications for enforcing even admittedly weak IP claims on behalf
of clients:
Q: Now let me ask if you ever have any problem with that, with
trying to enforce a client’s weak trademark or copyright case? Did
that bother you at all in this case?
A: No, I thought the case was weak, but not impossible. Your duty
as a lawyer is not to do what’s morally right, but to represent your
client as long as you don’t do anything that’s morally wrong, and
it’s up to the court to decide what is right.
Q: And “beating up” on the little guy over a weak trademark claim
is, as you say, not ethically wrong?
A: It raises the point of whether making the assertions of a
trademark claim where you know they’re not valid, is ethically
wrong. But it’s arguable. And it’s for the court to decide, to say it’s
not valid, that nobody’s going to be confused. So I think it’s not