One lawyer put it as follows:
A: I look at whether it’s a copy. Is it just copying my client? Is it
too close?
Q: As opposed to what, what would not be just a copy?
A: Something that shows originality, it’s not too close. But you
know when they copied you, if it’s a real copy. That usually jumps
out at you.
Q: What types of copyrights or things are you talking about?
A: Different types, clothing designs, gaming—I do a lot of
copyright work for a gaming company—a popular cartoon
character, a mix.
Q: So, can you tell that it’s a copy or not . . . likely to be an
infringement or not just by looking or what else do you do?
A: You can tell pretty easily, is it a copy.85
Even if these lawyers often characterized their legal assessments
as relatively straightforward, they also frequently qualified this. As a
number of lawyers indicated, their assessment of potential
enforcement claims also reflects awareness of the uncertainty of legal
outcomes in the real world. As one lawyer stated:
A: Of course, if you ever do get before a judge or jury, your own
sense of what’s a likely outcome in a case can go out the window.
There’s a lot more uncertainty. Judges don’t always get it right, so
you have to factor that into it for the client.86
In a recent article, legal scholar Leah Chan Grinvald suggests
that companies and lawyers who send aggressive demand letters in
trademark disputes appear not to have conducted much legal
investigation as to the legal merits of some of their claims.87 But the
present study suggests that the issue may be very different. All of the
study lawyers conduct some investigation as to the legal merits of
every claim, and it appears from the interviews that the clients do as
well. The lawyers in this study stated that many if not most of their
trademark and copyright enforcements dealt with facts that were
relatively straightforward to analyze legally. The more challenging