understand how trademark and copyright disputes arise and are dealt
with in the everyday practice of law.
A. “Most Cases Settle”: The IP Dispute Pyramid
One of the most important features of the IP disputing landscape
is that it takes place primarily outside of the formal legal system.60
Empirical scholarship on the disputing process in the United States
indicates that most perceived grievances or injuries do not result in a
formal dispute, and most disputes that arise are dealt with through
informal processes such as negotiation rather than by means of
adjudication in court.61
As discussed below, trademark and copyright claims that IP
owners decide to enforce are most commonly resolved in a system of
private negotiation outside of court—typically in negotiations begun
after a demand letter (often called a “cease and desist” letter) is sent to
an alleged infringer on the IP owner’s behalf by a lawyer. This is true
even for those disputes that result in formal legal proceedings—
typically a lawsuit filed in court or in the Trademark Trial and Appeal
Board (“TTAB”).62 Lawsuits to enforce IP claims are generally not a