hypothetical case was resolved by settlement between the parties on the
courthouse steps, just before the hearing on the motions for preliminary
In settling, it must be assumed that Small was motivated by the consequences to it if the court eventually decided in favor of Big. Conversely, it is reasonable to assume that Big was motivated by the consequences to it if the court eventually decided in favor of Small.
While neither of our fictional sides said that the settlement was a bad settlement, it all comes down to the fact that a settlement provides a resolution the parties can live with, rather than having the judge decide who totally lost and who totally won. While settlement isn't the best if you're Perry Mason, it is the best if you're Hamilton Burger, and most of us are Mason sometimes and Burger other times and never able to predict with certainty how it's going to work out this time.
If you have thoughts about how the court might have decided, or about the postulated decisions referred to by the links on this page, or about anything else about trademarks, reach us by email. No promise can be made that all such emails will be answered, or that any changes will occur as a result of your email, but we are interested in your feedback.
When examining the postulated decisions, remember that what we have seen in this case is limited to what happened before the hearing on the motions for preliminary injunction. There would be a lot more to come if the case went further, including more discovery and more evidence. The postulated decisions would only have been handed down after all was said and done, and are thus based on speculation as to what would have been said and done. The parties had to do that speculating, but apparently felt that they knew enough from what had already been revealed to make an informed decision.
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