A key contention of legal writing scholarship is that the legal resolution is rooted in storytelling. The law consists of an endless telling and retelling of stories. Clients tell stories to their lawyers, who must figure out how to frame their client’s narrative into a legal context. Lawyers retell their clients’ stories to judges using pleadings, motions, and legal briefs. Judges and administrators retell these stories in the form of an opinion or verdict.
Storytelling in the legal context is an important element of persuasion. For the purpose of this comment, legal storytelling is defined as the use of fiction-writing techniques and elements to craft a non-fictional account of a client’s story. These elements or “basic building blocks” include theme, character, conflict, resolution, organization, plot, and point of view. Current legal writing scholarship generally applies these elements to the practice of law, or specific areas of law such as criminal law, personal injury law, civil rights law, etc. However, this type of scholarship applied to other areas of practice, such as intellectual property law, is limited. In Intellectual Property (“IP”) practice, this legal writing scholarship is usually limited to patent litigation due to its inherently technical and complex concepts. Other areas of practice in IP, such as trademark law, are excluded from this literature. Given trademark law’s exclusion from legal writing scholarship, this type of scholarship is needed.
This comment will address common issues in the fact sections of trademark opposition briefs, and discuss how storytelling elements can improve persuasion in these briefs. An opposition is an inter partes proceeding that occurs before the Trademark Trial and Appeal Board (“TTAB”). The process allows any interested party to seek a remedy prior to the registration of a mark; the interested party or “opposer” files an action challenging the application of a mark if the party believes he or she will be harmed by the mark’s registration. The trademark opposition process raises the stakes for the registration of a mark for competing forces of both the opposer and applicant. In high-stakes litigation, both parties must employ their skills of persuasion to obtain the desired outcome. In an opposition, the parties get this chance with the trademark opposition trial brief. Trademark practitioners rarely appear in person before the TTAB, so the trial brief often serves as a party’s sole opportunity to present its narrative of the facts and the legal principles supporting its position. However, the narrative within the trial briefs misses the mark. The facts are presented as a collection of facts rather than a story that contains facts. As a result, the Introduction and Statement of Facts sections turn into a lackluster compilation of facts about a party’s mark. The inclusion of storytelling elements and techniques will improve both persuasion and advocacy in trademark opposition briefs.
Initially, this comment will discuss the overall importance of legal storytelling and will present common storytelling elements that are often employed in the legal writing discipline. The second section will briefly discuss the challenges of storytelling in IP cases and the importance of expanding legal writing scholarship in IP litigation. The third section will examine the opposition proceeding and its related procedure, the primary types of claims raised in an opposition proceeding, and end with an assessment of opposition briefs.
What's Your Story? Every Famous Mark Has One: Persuasion in Trademark Opposition Briefs,
21 Marq. Intellectual Property L. Rev. 231
Available at: https://scholarship.law.marquette.edu/iplr/vol21/iss2/7