According to the 2017 American Intellectual Property Law Association Report, the average cost of a Trademark lawsuit ranges from $300,000 to more than $1,000,000. The average cost of a Trademark opposition proceeding is over $80,000 and such a proceeding will not stop a party from using a mark or award any damages. The high costs are the result of the specialization in the law and layers of “gray area” that permeates trademark law. Because of this, the discovery process is burdensome and expensive and expert witnesses are often essential and carry their own large price tag. Jurors are not trained in this particular area and Judges rarely have an extensive background in trademark law. No lawyer can give strong assurances of prevailing, especially when the critical test, “whether the mark is likely to cause consumer confusion as to the source or origin of goods” is far from a black or white test. In addition, trademark disputes are often difficult to evaluate from a damages perspective. It can be challenging for the parties to produce evidence of damages they seek, and even more challenging for the jury to arrive at a fair award.
Using an experienced Trademark lawyer as your mediator offers the parties the opportunity to lean on the mediator’s experiences in handling trademark cases to help both sides understand what they face in the lawsuit. Whether it be helping the Parties understand the effect of surveys on the jury, or how jurors may react to damage theories, an experienced trademark mediator can help find common ground and resolve the dispute.
Mr. Gilchrist is one of the select members appointed to the International Trademark Association’s Panel of Trademark Mediators, a panel of neutrals who help those involved in trademark disputes. INTA’s Panel of trademark mediators have been selected based upon their proven expertise in trademark and unfair competition issues and mediation.
