Fight in the Wrong Places (no. 30 in our list of IP mistakes)
Another universal principle of strategy appears in historical manuscripts as “Lure the Tiger Out of the Mountain.” The idea is to entice your adversary to fight on your terms, here presuming that if you otherwise take a fight to the mountain, then it would be to the tiger’s (adversary’s) advantage.
Fighting on your terms can mean a number of things. In this post, we will focus on place.
There is no question that where you engage in an IP conflict matters. IP grants you the right to enforce exclusivity. That right is an interpretation of law and not an absolute. Courts in different places, even within the same countries, will interpret the right to exclusivity differently. Depending upon your position, you want to fight in the place most likely to deliver the outcome you want.
Research and seek to fight in the best venue to win, both country and court. Given a choice, select a riskier venue only if the benefit of a positive outcome for you outweighs the additional risk you will accept. It is important to consider all aspects of the place you will fight inclusive of verdict track records, costs, and likelihood of the place to create a useful precedent elsewhere.
Fighting in the wrong place becomes a mistake when you had a way to fight in a better place for your case and relinquished that advantage to the opposing party. Never be overconfident that place does not matter in a fight. Place can be important enough to give you reason to preempt an expected lawsuit with a lawsuit of your own filed in the best place for you.
(This is number 30 in our list of IP mistakes and how to avoid them.)
(Image credit: Keith Roper)