“A: That’s my job. If the client wants me to do it, and if it’s not
clearly unlawful, I, as a lawyer, have a duty to be a zealous advocate
on the client’s behalf. I have an ethical duty to do so.”117
Thus, the IP lawyers in this study had several practical and ready
means of justifying aggressive trademark and copyright enforcement
when necessary—and even when enforcing admittedly weak legal
claims. Indeed, the rhetoric of zealous advocacy allowed the lawyers
broad scope to characterize such enforcement efforts as a professional
and ethical virtue.118
D. Do the IP “Haves” Come Out Ahead?
The interviewed lawyers were also asked whether they perceived
any advantages for clients who were regular enforcers of trademarks
and copyrights—“repeat players” in the IP disputing process.119 This
line of questioning builds on insights theorized by Marc Galanter in
his influential article analyzing how and why repeat litigants may gain
strategic advantages in the disputing process, particularly when
disputing against “one-shot” users of the legal system.120 While
Galanter’s interests and insights apply particularly to litigation in the
court system,121 this study examines how they might resonate in the
context of informal negotiations in the IP disputing process.
1. Reputational Advantage
Many of the lawyers agreed that there were advantages for repeat
trademark and copyright enforcers. First, repeat player IP enforcers
may gain a reputational advantage from becoming known as a
frequent claimant, particularly if they were known to be an