The Anchor Plate : Intellectual Property Lawyers & Attorneys : BrickHouse Law Group : Open-Price Lawyering, Hourly Billing : St. Louis, Missouri

Have you ever driven by a construction site and wondered "Who actually knows what's going on here?" Somebody must. Even the Empire State Building was completed ahead of schedule.  But what does this have to do with a law practice? 

The other day we had a very productive meeting with a client for whom we had just completed a fixed-fee engagement. That engagement had been short in duration, limited by a date-certain event, and we were able to meet the client's needs at a price all agreed was reasonable and appropriate.

We were very happy, then, when the client engaged us again. At first, however, this new project appeared to be more open-ended, with less clearly defined parameters, and we grappled a bit with how to price it. Nevertheless, by the end of our meeting, we all felt fairly comfortable that we had defined what was in the engagement and what was not. 

When we got back to the office, we started to identify the specific tasks needed to achieve the client's goals, how much time they would take, who would do what, and--most importantly--how we would keep ourselves on task to make sure we could deliver the quality the client expected in an efficient manner. In short--how were we going to manage this project?

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Sometimes you get lucky and get to work on something that you just feel good about. 

That's the case right now.  We're helping some good friends with an amazing project that's all about turning horrible grief into something lasting and uplifting.  Please check out The Angel Band Project -- a very special project and a cool blog, too.

This is a great example of talented, compassionate people coming together to create something bigger than themselves, and bigger than the tragedy that first devastated -- then motivated -- them.  It is a powerfully moving tribute to a brave lost friend, to be sure, but it has also grown into much more than that.  In part that's because of the fantastic mix of music being created, but also because of the charitable cause it will support. 

Geoff and I are proud to be doing a small part, but many others are donating their time and talent as well -- just check out this latest post about last weekend's recording session in Chicago and all of the really cool people involved. 

Want more information?  You can read the Angel Band Project's blog, follow them on Twitter, or become a fan of their Facebook page.  It's their story, not ours.  Suffice to say that if you or someone you know has been a victim of sexual violence, this project will be especially meaningful. 

If you just love good music made well, then I bet you'll dig it, too.

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"Our competitor is infringing our trademark and killing our business! You've got to make them stop, whatever it takes!  (pause . . . wait for it . . . )  But we can't afford an expensive lawsuit, especially when we have no idea what it will cost.  Which way do we go?"

So say many of today's clients.

It's 2010 and the client revolution is in full swing -- lawyers are finding that they may just have to justify their bills based on the value received by their clients, not just the amount of time the lawyers devoted to a matter. If you think about it, this shouldn't come as much of a surprise, but somehow it seems like virgin territory for many lawyers.

Of course, certain types of transactional practices have been offering so-called "alternative fee arrangements" for years -- billing by the document or deal, for example -- but it's much less common in a litigation practice.  Most lawyers will tell you this is because litigation is, by definition, an exercise in managing uncertainty.  With apologies to Heisenberg's Quantum Mechanics, many litigators seem to have their own "Uncertainty Principle," which goes something like: "If you don't know what the other side will do, or what the court will do, how can you predict what the case will cost?"

Jay Shepherd disagrees.

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Can you tell the difference between a face and a butt? Sounds like a fairly simple question, right? I suspect most people would say that, yes, as a matter of fact, they can tell the difference between a face and a butt. That's certainly what Jimmy Winkleman and his small St. Louis company The South Butt hope. The folks at The North Face, on the other hand, are praying that you're confused.

The North Face filed a trademark infringement suit against The South Butt in mid-December in the Eastern District of Missouri. The defendant is a local kid who started his line of South Butt clothing to pay for college, selling it out of his parents' pharmacy. Claiming to be a parody of the famous North Face line, South Butt has taken a very aggressive media stance, clearly trying to win the case (read: drive a good settlement) via public opinion. In fact, the disclaimer on the media page on the South Butt website says that if you can't tell the difference between a face and a butt, buy North Face!  

The Eighth Circuit rules here, however, and that so-called parody defense (which doesn't really exist under trademark law) isn't going to mean a whole lot if survey evidence shows a likelihood of confusion. For this reason, it will be interesting to see what kinds of survey's are ultimately admitted -- North Face has a much stronger case if it can show the two marks as they are used on virtually identical lines of clothing, whereas South Butt surely wants the marks to simply be viewed side-by-side. 

One thing is for sure -- sales of South Butt clothing have gone through the roof since news of the lawsuit hit.  It remains to be seen who will get to keep the profits from those sales.

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Anchor Plate: a metal plate fastened to the exterior of a brick building with a washer or tie rod to reinforce structural support, usually decorative.

The Anchor Plate: a virtual gathering place for dialogue about the nature of practicing intellectual property law, to increase knowledge and to amuse.

 

Well. It's great to be back in the blogosphere again.  When you last heard from us, we were biglaw IP litigation partners and co-authors of Owners, Borrowers & Thieves 2.0, a fine blog (if we do say so ourselves) about IP litigation in the 21st Century.  (Our good friend, the great Dave Rein, now steers that ship more ably than we ever did -- and he was nice enough to leave our old posts up, too!)

Things change, however.  If you've followed the legal industry at all in the last 18 months, you know that some things have changed dramatically.  Last fall, Geoff Gerber and I left our long-time jobs as partners in a large St. Louis law firm to start our own boutique intellectual property, media and entertainment law firm.  We did it for a lot of reasons, most of them good (we think).  Ultimately, we just wanted to practice law differently (much more on that later).  So now you can find us at The BrickHouse Law Group.  And you can find us here, at The Anchor Plate. 

We hope to be valued participants in the dialogue -- good listeners as well as good contributors -- and we expect to have guest authors from time to time as well.  We'll cover some familiar territory (fair use, copyright and parody, IP litigation, comic books, for example), but we'll also reach out into some dynamic new areas, such as open-price lawyering, cloud computing and social media, to name a few. 

As with any new venture, we expect some twists and turns in the road ahead -- that's half the fun of driving.  We hope you'll find it worthwhile to join us on the journey.

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