Threats, Bullying and Big: "Once You Are Big You Are Not Cute Anymore"
In reading the NYT this past Sunday, I pondered the article by Brad Stone, targeting Google’s “monopoly” in online search and advertising, posing the question: Sure It’s Big. But is That Bad?
Increasing governmental antitrust scrutiny of search giant Google’s practices, which target Google’s favoring of its own properties, begs the question of whether Big is Evil and can we trust Big – the same issue raised in the Google Book Settlement - is Big itself inherently Evil and what can Big do to be otherwise?
Distinguished trademark lawyer and blogger Paul Reidl in his April 17, 2010, 
IP Alley post Counterfeiting, Civility, and IP Backlash impliedly asks the same question about Big Law as he ponders the IP Backlash. Paul’s recent description of Big Law bullying in a trademark dispute with allegedly counterfeit goods is an example of the shadow side of power which fuels the IP backwash and disempowers all brand owners who rightfully seek to police their marks and retain consumer confidence as well as respect within their own markets. As Paul confirms, the target of the dispute may be innocent and the dispute itself of Big Law’s own making. Here’s what happened to Paul and his client:
“The demand letter from Big Law was a typical Strum und Drang letter sent on behalf of Big Corporate America. Roberto Duran would have said “no mas” immediately on receipt. And, in fact, the recipient immediately did. He was a trader with several small retail outlets. He had bought the goods from a regular supplier who had been selling them to his competitors; the supplier had bought them from a web site. It sure looked legitimate, which made me wonder: how the heck was he to know if these were counterfeit if, in fact, they were? When he saw competitors and a web site selling the same product the assumption that they were legitimate was certainly a reasonable one. His first inkling that there was a problem occurred several days before he received the letter when someone (presumably the Big Law investigator) bought one of the goods from him, told him that it was counterfeit, and that he was going to jail unless he stopped selling them.”
As Paul points out, the key issue was never fully investigated by the Big Law accuser:
“… whether in fact the goods were counterfeit or were they simply being sold by an unauthorized retailer? Since I knew that the trademark owner sold only through authorized retailers, this was not a small point because if the goods were genuine then the recipient of the demand letter had a perfect right to sell them. The trademark owner’s gripe would then be with the person who breached their contract and sold the goods outside the authorized channels, not with my retailer.”
When Paul questioned counsel about this key issue, more bullying ensued.
“I was told that was not relevant; didn’t I know that the trademark owner was a huge company and that this was a famous brand? Didn’t I know that counterfeiting was criminal and that Big Law could crush my client? Didn’t I know that they were entitled to damages, enhanced damages, attorneys’ fees, and first born children? When I mentioned the investigator’s comments about criminal activity, I was scoffed at: that did not happen, your client is a liar.”
Paul’s experience is noteworthy because in this case, Big Law was meeting true empowerment in a trademark lawyer of Paul’s experience, depth and integrity – coupled with what appears to have been an innocent client. Concluding that the surrender occurred at the outset and the ensuing attack by Big Law pointless, what was Big Law’s objective?
The chilling effects of market power can be reframed when we ask – what is Power? Does Power mean strength and control? Does it mean being forceful, dominant, a winner, a tyrant?
Power has two sides – one which can destroy, and one which can create positive change. The real problem with how we define power is that if we limit our view to seeing it as control, then we must always fight for that control for fear that we will lose Power if we lose control. When we expand our understanding of Power to include the positive, empowered qualities of power, such as knowledge, communication, resources, authenticity, patience, insight, influence, growth and ultimately choice, we can see a larger view and can collaborate without losing anything. When we power with, rather than power over, we open up our empowerment as a healthy tool for accomplishing collective goals.
So, what is Power in the IP world?
Can we expand its definition to include the positive qualities that empowerment brings to a community, a market place, or in Google’s case, even a universe like the internet? And how can we as attorneys and mediators entrusted with IP matters empower our clients and ourselves as we navigate and lead by example? Puts a new spin on anti-trust, with emphasis on the word “trust.” Lots to contemplate as we view Big and Evil, metaphors which themselves portend a certain mindset before we even investigate the facts to see whether the larger collective goals can be met through a collaborative perspective.
Special thanks to Fleet Maull and Kate Crisp for their efforts to empower healthy leadership in all venues through their “Path of Freedom Facilitator Training”, which was the inspiration for the power with concept rather than the narrow and limiting view of power over as in control.
-MZ
