iv. Target Size and Sophistication
Potential target size and sophistication also influences the
decision to enforce IP rights. All of the interviewed lawyers were
asked whether they considered the target’s size a relevant factor in
determining whether to initiate enforcement steps. The answer was
resoundingly “yes.” But size matters in different ways. When probed,
the attorneys explained that they were well aware that asserting
claims against a smaller company was often easier than targeting a
larger company. The lawyers stated that smaller companies generally
could not effectively resist a trademark or copyright claim or
threatened lawsuit due to the high cost of IP legal proceedings,
regardless of the legal sophistication of the target or their lawyers.
Target “size” as used by the interviewed lawyers is thus most often a
proxy for the ability to afford to defend against an asserted IP claim.
This was a prominent theme in many of the interviews that is
reflected in the discussion below:
Q: Why go after the little guy?
A: Ease. It’s easy often. They may not have in-house or any
lawyers to help. They may be intimidated. You can often get them
to roll over with a few threats and some sweet talk.
Q: Like what? What does that mean “threats and sweet talk”?
A: Threats means we’ll sue your sorry little company if you don’t
stop.
Q: So you can bully them, the little ones? Do they capitulate?
A: Yes. Sometimes. They may just stop or they may take you
seriously at least and respond. That makes it easier to get
something settled.
Q: What’s sweet talk?
A: Scare them with your big guns, then let them know you’re
willing to be reasonable. They aren’t going to win, but you won’t
be an ass about it if they negotiate reasonably with you to stop on
reasonable terms.97
On the other hand, many of the lawyers in the interviews
expressed a belief that working with a target that was sophisticated or
which had experienced IP counsel also had advantages. Under these