The cost of the litigation, the threat of injunctive relief, the complexity of the law, the frequent use of experts, and ever-present confidentiality issues all differentiate the trademark case from general commercial litigation. In many trademark mediations, counsel tends to focus on the law rather than the resolution. The parties will make significantly more progress in the mediation if they appeal to reason and not strictly legal arguments. Why does it make more sense to settle than to litigate? Because the parties control the outcome, and resolutions beyond the power of the court are available.
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