File sharing and mass counterfeiting cases take up large proportion of the copyright and trademark dockets.
Lex Machina and LexisNexis released their Copyright and Trademark Litigation Report looking at copyright and trademark litigation trends in federal district court. It focuses on the three-year period of 2018 to 2020 and includes data about massive filers in federal court.
“There is a unique trend in these two areas where law firms filing certain types of cases dominate our lists because of the massive amount of filing they do,” said Rachel Bailey, Lex Machina’s Copyright and Trademark Legal Data Expert and author of the report. “In copyright, these were firms filing file sharing cases and cases filed by the Liebowitz Law Firm. In trademark, these were firms filing mass counterfeiting cases.”
Findings from the report include:
- Copyright filings peaked in 2015 and 2018 due to large numbers of file sharing cases. There was a drop-off in filings between 2019 and 2020, likely due to the pandemic, as well as a drop-off in case filings by the Liebowitz Law Firm.
- The top two copyright plaintiffs, Strike 3 Holdings, LLC and Malibu Media, LLC are adult film companies accusing defendants of pirating their content.
- The most active plaintiffs’ law firm in copyright cases was Fox Rothschild with 1,993 cases, due to a large number of file sharing cases filed on behalf of Strike 3 Holdings, LLC in 2018. The most active defendants’ law firm in copyright cases was David Wright Tremaine, which defended 208 copyright lawsuits in the last three years.
- While trademark case filings generally held steady between 2017 and 2019, they had the lowest number of filings of the last decade in 2020 with 3,778 cases (a 14% decrease from the year before).
- As policies and strategies have changed, federal dilution claims have dropped 59% in the last decade and cybersquatting claims have dropped 50%.
- The Northern District of Illinois, with 1,475 cases, was the most active district for trademark cases due to the large number of mass counterfeiting cases filed there.
- The top two trademark plaintiffs were Sream Inc. and Roor International BV, which are often co-plaintiffs in lawsuits alleging infringement of their ROOR brand glass water pipes.
- The most active plaintiffs’ law firm in trademark cases was Greer, Burns & Crain with 578 cases, which filed a large number of mass counterfeiting cases in the Northern District of Illinois.The most active defendants’ law firm in trademark cases was Covington Burling with 129 cases, because it was the defense counsel in the opioid cases in the Northern District of Ohio.
- Copyright cases terminated with a settlement 82% of the time, one of the largest proportions of settlements in any Lex Machina practice area. On the other hand, trademark cases only resolved with a settlement 56% of the time due to the high number of default judgments (15% of cases resolved with a default judgment).
- Findings and damages on default are extremely common in these practice areas. In the last three years, nearly $2.3 billion in statutory damages under the Copyright Act and $4.9 billion in statutory damages under the Lanham act were awarded on default.
Lex Machina’s reports and software enable practitioners to devise data-driven litigation strategies. The metrics in this report may help readers decide who to pursue as clients, whether to pursue a particular motion, or when to settle. This research supplements traditional legal research and anecdotal data for a competitive edge in litigation.
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