June 03, 2014

Trademark "Bullying" Leads to Depression in Lawyers

by Guest Blogger


Being a lawyer is a tough job. Lawyers are nearly four times more likely to suffer from depression and twice as likely to struggle with substance abuse than the general population. Psychologist and lawyer Dave Shearon, of the Thriving Lawyers Institute, believes that one of the reasons being a lawyer is so tough are the "values conflicts" that routinely occur when representing clients. Almost every legal matter involves some conflict of core values and produces a negative effect in the life of others. Obviously, protecting a murderer's constitutional rights creates a values conflict. Yet, values conflicts routinely pop up in the comparatively lighthearted world of trademarks as well. In fact, a fairly recent phenomenon in trademark law, "trademark bullying" provides a perfect example of what makes being a lawyer so emotionally taxing.

In theory, "trademark bullying" is the use of overly aggressive tactics in trademark enforcement or the use of superior resources to assert spurious trademark infringement claims against a smaller business. The term, however, is increasingly being used to describe any attempt by a large company to enforce trademark rights against a smaller one. It is this type of scenario that presents the greatest emotional challenges for lawyers, particularly when the question of liability is a close one.

Take the case of Rob Linden, the owner of a small insulation business called "Thermal-Wise." After using the name for four years, he was sued by Questar Gas Co., the owner of the "ThermWise" trademark. Whether "Thermal-Wise" and "ThermWise" are confusingly similar and whether the gas business and insulation business are sufficiently related is questionable. What is not questionable is the values conflict created for the lawyers in the dispute.

On one hand, trademarks are extremely valuable and must be policed and enforced or they can be lost. Therefore, Questar was entitled (and required) to protect this valuable asset. The right to protect one's property is a universally shared value. On the other hand, Thermal-Wise did not have the resources to defend against the enforcement and may have been forced to capitulate in a close case it may have won. This offends the universally held value of justice. Everyone values both justice and the right to protect one's property. Yet, as a lawyer, you are forced to pick one value over the other, not by virtue of your own inner reflection, but by virtue of which party you happen to represent. Needless to say, that sucks for your mental well-being.

If you are a lawyer, at this point you have already picked a side in the scenario above and engaged in the second problem that creates mental health issues in our profession: invoking our go-to "minimal adaptations." According to Shearon, lawyers frequently adopt improper coping mechanisms (he calls them "minimal adaptations"), which mask the emotional toll of dealing with the difficulties inherent in the profession. The problem with minimal adaptations is that they actually cause more problems. For instance, many lawyers attempt to handle the values conflicts inherent in the job by de-valuing values, and placing more emphasis on rules and laws than values. If you are sympathetic to Questar, you probably immediately said "the rules are the rules," de-valuing the injustice caused by Thermal-Wise's lack of resources. While it may mask the values conflict, adopting a world view that emphasizes rules over values leads to a loss of purpose and feelings of hopelessness.

On the flip side, many lawyers deal with the emotional issues inherent in the profession by adopting "white hat partisanship," which Shearon defines as "seeing [one's] personal behaviors as stemming from admirable qualities manifesting within the demands of the practice of law, while seeing those of lawyers representing differing interests as evidence of undesirable qualities." It is this coping mechanism that would lead a lawyer representing Thermal-Wise to call Questar a "trademark bully," simply for asserting its trademark rights in a close case. Denigrating the other party while elevating yourself allows you to ignore the value conflict. Unfortunately, routinely equating any contrary position with poor character can make you become arrogant and overly aggressive and develop a compulsion to always be "right." That, in turn, leads to all sorts problems in your professional and personal relationships.

There is nothing we as lawyers can do remove the values conflicts that occur in our profession--they are inherent in what we do. We can, however, acknowledge the incredible impact that values conflicts and other inherent difficulties in our profession have on our mental well being. If you are a lawyer, or care about one, I highly recommend that you read Dave Shearnon's article on thriving as a lawyer. It can be found here. He identifies and discusses the barriers to our happiness as lawyers, as well as all of the minimal adaptations we know all too well. In a follow up article, he identifies some steps for handling the emotional challenges of being a lawyer.

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