The IP Lawyer's Nightmare: "But Everyone Else Does It"
Before we weigh up a possible reply, however, let's consider a bit of cultural background. One of the most widely-used slogans of the past decade is "the wisdom of the crowd". While there is inherently nothing new about the concept per se, what is interesting is the apparent change of perception in the role of the broader collective as a source of knowledge, if not confirmation and validation of such knowledge. This Kat remembers preparing for his State of Ohio bar examination over 30 years ago. Before entering into the exam room, we were told by those who sought to prepare us—"Don't discuss the questions with your fellow examinees during the break. It will only depress you. After all, you collectively are always smarter than you are individually." Yes, the crowd might be a source of wisdom, but that wisdom was not necessarily benign. Indeed, we were all supposed to be a little like Will Kane, standing out there on our own, firm in our principles. Will Kane was the iconic character played by Gary Cooper in the classic 1952 movie, "High Noon", here here. Marshall Kane is ultimately forced to stand up alone in the middle of dusty town in the American Wild West against ex-con Frank Miller and his murderous henchmen. Kane prevails (with a little help from his new bride, played by Grace Kelly) and the message that "High Noon" sent to generations of viewers was clear. When the chips are down, and the issue at hand is about what really matters, you can only rely on yourself. The crowd is transient, unreliable and fickle—as for wisdom, you have to look elsewhere.
Things have certainly changed. "But everyone else does it" is now a form of prima facie validation, designed to enable the client to obtain the result that it prefers, even at the price of challenging, if not undermining, the authority of one's IP counsel (not that this Kat is suggesting that any of his clients is akin to Frank Miller). The ubiquity of digital content makes it easy to determine what information is out there and, e.g., to identify quickly any number of examples of competing websites that contain similarly accessed contents or make use of seemingly confusingly similar marks. Faced with such factual examples taken from the collective, what is the IP lawyer to say in response? After all, weren't we trained to respect facts and fashion our conclusions accordingly (as attributed to John Maynard Keynes, "When my information changes, I alter my conclusions. What do you do, sir?" ).
So what will it be for the IP attorney, a change of view in light of the wisdom of the crowd, or a resolute stand of his position, as in the case of Will Kane? Indeed, this Kat wonders how many of us have altered, if even slightly, our legal advice, having been confronted with the wisdom of the crowd. Do we reply by saying that "I agree that the legal issue may not be totally black and white, but my view remains unchanged"? Or do we rely on the dynamics of the fait accompli—"Whatever the ultimate legal right and wrong here, you have already made the decision and you can at least enjoy the legal certainty that goes with it"? Or do we fall back on the unique factual circumstances of each instance—"I don't know about the facts in these other cases"? Or do we emphasize risk analysis—"The fact that 'they' are also doing it does not make it all right, but it only shows that the rights-holder cannot go after everyone. It's your call." Whatever the response, you can then only pray that the client does not threaten to take the matter up with the senior attorney. No doubt the wisdom of the crowd in the digital age has yielded some palpable benefits, such as crowd-funding sources of the ilk of Kickstarter, here. But enabling one's client to challenge one's legal IP advice by claiming that "everyone does it" is not one of them.
More on "The Wisdom of Crowds" here.
