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Right before Christmas, my wife had to pick me up from the airport and it’s not fun to go from the airport straight to my parents. Where was I? I was in Los Angeles at a mediation.
While I have the philosophical problem with a federal court ordering the parties to a private mediation, that’s what happened in this case. So let’s talk about what happens if you have a trademark infringement suit and are going to mediation.
Number one, you need to expect to be compromising on your case in order to settle it. If a court is ordering you to mediation, whether that’s a judge-led mediation or a private mediation, the judge really is expecting you to settle your case. That means that you have to compromise. Well, both parties have to compromise. That means you as the plaintiff can’t be expecting $10 million if there’s only, for example, 1000 sales. Of course, depending upon the price of the product.
Number two, you need to understand the weaknesses for that particular situation. If your trademark is not registered, that is a weakness.
Number three, you’re also going to be sitting down with somebody who probably doesn’t necessarily have a lot of power but will be able to hopefully talk to both sides. So that person is going to prepare for the case. So, also, you have to know the strengths of your case and you also have to know the weaknesses of your case. That is very key in a mediation and it’s certainly something that that personally I struggle with with my clients.
I want to show you the strengths of the case, but I also am obligated to say here’s why your case is not necessarily worth $10 million or here’s why your case, you know is going to need to settle during this particular phase.
Number four, understand that also there’s going to be a lot of downtime at a mediation. The mediator is going to talk to us, the mediator is going to talk to the other side and there’s a whole lot of thinking for what doesn’t exactly seem like a whole lot of action.
Don’t expect a whole lot of action, expect a lot of downtime and trying to settle a case. It’s going to take time, but hopefully during the mediation, the lawsuit can settle.
Understand your case, understand the weaknesses of your case. Expect the private mediator to talk to both sides in order to get that resolution and ultimately expect to compromise on that resolution. But during that private mediation, get the resolution and then your case will be settled and then both sides can move on with the business that that, that they’re doing. I’m Anthony Verna, managing partner of Verna Law, where we focus on IP and advertising law. Thank you.