What’s wrong with trademark litigation today? Well, in a word, economics.
A national law firm is hired to represent a consumer brand company in a trademark infringement matter and wants to show both the client and the opposing party that it means business. A flurry of motion practice ensues, aggressive discovery tactics become the norm, and the law firm proudly establishes its very own “war room” to determine what part of the kitchen sink it intends to hurl over the ramparts next. Welcome to Legal Gladiators – Trademark Litigation Edition.
Trademark litigation is an expensive undertaking for trademark owners. According to a recent survey by the American Intellectual Property Law Association (“AIPLA”), the average legal fees and costs for a case with the amount in controversy under $1 million is $202,000 through the end of discovery and $375,000 through trial. Coupled with the fact that less than 5% of cases actually proceed to trial, it would seem to make economic sense for trademark attorneys to counsel their clients to consider settlement options as part of an overall trademark dispute strategy.