whether and how to enforce IP rights and against which targets. Part
IV presents some of the most important and provocative findings of
this study. It examines how private IP enforcement practices—
primarily “cease and desist” letters and threats of litigation during the
course of negotiations—are strategically used to settle disputes, often
resulting in a target’s decision to capitulate to the asserted IP claims.
This section also shows that non-meritorious trademark and copyright
claims are indeed enforced successfully in many cases, thus
substantiating the thesis that IP rights are over-enforced in practice
under the radar of the courts and the formal legal system. Part IV also
examines the lawyer’s role in the knowing assertion of nonmeritorious
or weak IP claims as well as the ethical reasoning lawyers
employ to justify such tactics, even when they go against the lawyer’s
better legal judgment. Part IV concludes by exploring whether repeatplayer
enforcers have strategic advantages in IP disputing, and under
what circumstances “bullying” tactics are effective (or not) in
asserting trademark and copyright claims. Part V recaps the major
findings of this study and outlines the need for further empirical,
multi-method analysis of the IP disputing process in light of the
present study’s findings.
II. METHODOLOGY
This Article is based on original data from semi-structured, inperson
interviews with experienced lawyers who regularly enforce
trademarks and copyrights on behalf of their clients. Because the
research questions involved understanding how, why, and to what
effect IP rights are enforced by trademark and copyright owners, the
study asked experienced IP lawyers to explain how they and their
clients understand and make decisions at each stage of the pretrial IP
enforcement process.32 Although interview-based research has been
used extensively in many areas of socio-legal research,33 there is very