It is true that litigation can be unpredictable. But it is precisely because of this fact that businesses need to ensure that the law firm they retain have the experience to know where the contingencies may lie, so that they can be accounted for in a budget.

There appears to be a common misperception that trademark matters are not complex. Unlike patent litigation, trademark matters do not require an understanding of the workings of a device or method. But trademark matters do require an understanding of the market for a good or service and the consumer behavior with respect to a particular good or service, which can be as complex as understanding the device or method itself.

Additonally, trademark infringement cases are determined through the application of a multi-factor test with each factor having its own interpretation in a given jurisdiction.

A lawyer that tells a business a budget can’t work in a trademark infringement case or sets the budget at an unreasonably high level because of the multi-factor test is signaling that he/she probably does not have the experience to efficiently manage the case. Experienced trademark counsel know what stones to look under and how the evidence supporting its claims or defenses will be admitted.

So ask the budget question and carefully review the budget given because once you are in a lawsuit, it is often hard to get out.