And while this question is only one of many that trademark owners should ask when confronted with a litigation situation, I usually use this example to start off the discussions with the brand owner:
If the brand is making $100k a year and growing, then it can possibly afford $10k of litigation which secures the trademark for 10 years. However, if the brand is only making $10k and not expected to do much more, then $10k for trademark protection seems financially prohibitive, even spread over 10 years.
Most “litigation situations” worldwide are managed in 2-4 “steps”, over a period of 6-14 months, with a maximum expenditure of usd$15K.
This is very general of course. Some countries will be fairly painless (such as Mexico and El Salvador) or ridiculously over the top expensive (such as Singapore and UAE).
It doesn't really matter if you are the instigator of litigation or the recipient...some one files the first salvo, and then the other side fires back.
Each “step” in a “litigation situation” has a 2 part process which consists of one side filing something (action), then the other side filing something in response (reaction).
Each side has a variety of defensive and/or offensive options in their bag. Which one(s) you and they choose will depend on the specific circumstances of each trademark issue at every “step”.
How many “steps” and the total cost of trademark litigation will be determined by factors such as these:
- The trademark examiner may refuse to accept our argument
- The other side may keep fighting
- The quality and quantity of support documentation provided may be weak
- Legalization, translations, and mailings of documents may be needed
- The fact that most litigation matters are charged on an hourly basis, so the longer the fight goes on, the higher the legal fees.
Litigation can be very expensive, but the process and its costs can be manageable.
If you find yourself facing international trademark litigation, don’t be penny wise and pound foolish by making a decision based solely on price. First determine the brand’s budget, the brand’s future, and its strength (ability to win), before carefully entering into any litigation situation.