What led you to establish your own firm and what tips would you offer others considering the same?
A mix of observations led us to establish Van Innis & Delarue in 2013. There were no high-calibre, independent Belgian trademark litigation boutiques, and thus we had the opportunity to be the first, with the marketing advantages that come with that. While we were happy in a first-tier full-service international firm, we felt that the ideal platform for an IP litigator was one with a 100% focus on IP litigation. Our firm is large enough to handle any case no matter how complex but small enough to guarantee excellence at every level. It is also flexible enough to work with the very best in every jurisdiction on matters with international aspects.
My advice to those considering launching an IP litigation boutique is to clearly define your niche and distinguish your firm from the pack. Tell the market what sets you apart from the competition. For what kind of cases or clients are you the go-to firm? The IP litigation landscape in Belgium is more fragmented today than it was five years ago, and now IP litigation boutiques must explain not only what makes them different from the large full-service firms, but also what distinguishes them from the other boutiques. Do not tell the market that you do the same work at better rates, which sounds cheap. Instead, tell the market what makes your work in a specific area better or the best.
Drawing on your experience in various forums, what are the key skills that a trademark litigator should possess, and how can these be honed?
A perfect technical knowledge of trademark law which goes beyond comparing signs and the goods and services for which they are used is important. Equally important though is a perfect knowledge of local procedural law. Further, the ability to define the key issue of a case at the very beginning, and to keep it at the centre of the debate is crucial. Nothing is more useless than the right answer to the wrong question. Also, the ability to take control of proceedings, remain on top of things, keep things moving and anticipate the next moves of an opponent are key skills. Finally, something that is not easy for lawyers who are particularly talkative by nature: know what not to say and when to remain silent.
Which trademark-focused case has been your most memorable and what have you learnt from it?
It is impossible to name one. The most touted cases are not always the most complex from a technical point of view. Unfortunately, the frustration that comes with an unexpected loss usually stays on my mind much longer than the joyful feeling brought by a victory, especially when I feel that the loss is not justified. An important – albeit perhaps clichéd – thing to keep in mind is that it is not over until it is over. This helps to keep you focused when you are winning, and it can give you courage when you take a hit.
How are client demands changing, and what effect has this had on the management of your firm?
Clients increasingly look at trademark litigation from a cost-benefit perspective, which affects how you must manage your cases and the firm. On the one hand, we must organise our work in an efficient manner, but on the other hand, we cannot work less tenaciously or thoroughly or cut efforts that have an impact on the outcome of a case. The lawyer’s role as a first judge for a case has become more important than ever. If a case does not look good, then tell the client right away and try to avoid lengthy proceedings that will make the client unhappy in the end.
Finally, how different do you feel trademark practice will be in five years, and how can practitioners best prepare for the future now?
Wonderful resources such as Darts-ip should make it easier to predict the outcome of day-to-day trademark conflicts, and should help practitioners to reach solutions at an earlier stage. The added value of lawyering might become less significant in that area. However, I believe that sharp trademark litigators will continue to play an important role and add value to high-end and complex trademark litigation. That is why Van Innis & Delarue already focuses on this kind of trademark work.
Van Innis & Delarue
This article first appeared in World Trademark Review. For further information please visit https://www.worldtrademarkreview.com/corporate/subscribe