a part, is one attempt to do just that.
More recently, other legal scholars have begun to pay attention
to what they term IP “bullies”—IP owners who assert, often
successfully, rights that are arguably weak on the legal merits.29
These scholars argue that such enforcement efforts can be very
effective precisely because they typically include threats of litigation
that many companies (and most individual targets of such threats)
cannot afford to resist because of the legal uncertainties in many areas
of IP law and because of the often enormous potential costs of IP
litigation.30 One contribution of the present study is to explore
systematically this ubiquitous, yet virtually unexamined, arena of IP
enforcement activity.
This Article presents findings from a qualitative empirical study
of how trademarks and copyrights are enforced (or, sometimes, not
enforced) in everyday practice. This research is part of a larger project
that seeks to map, analyze, and theorize the landscape of enforcement
practices in patent, trademark, and copyright disputes.31 Based on
original empirical data derived from 58 in-person interviews with
experienced lawyers who regularly enforce trademark and copyright
claims on behalf of IP owners, this Article explores and analyzes the
IP disputing process in everyday trademark and copyright practice. It
offers a unique window into an area of law that is vastly underexamined
and under-theorized in IP scholarship.
The Article proceeds as follows: Part II discusses the
methodology employed in this study. Part III maps the stages of the
IP disputing process outside of court and identifies the legal and nonlegal
factors that influence lawyers and their clients when determining