Asked almost 3 years ago - New YorkFlag
I am based in the UK, but have my work registered at copyright.gov and I have a federal registration at the USPTO. The accuser has an office in the U.S and claims I am violating their copyright and some of their product names.
We do business online, in the technological self-help industry and I am a business start-up. I believe they don't have a case at all, but I need to get this checked out. Will a U.S lawyer still help me, even if I am based in the U.K? Thanks in advance
Certainly, I'd be glad to take a look at the case.
Without seeing the case it's impossible to approximate cost. However, generally, a fixed fee won't be possible on a defense , because it's impossible to predict what the plaintiff will do - and thus it's not possible to estimate how much time or work it will take to defend you.
Please feel free to get in touch and we'll review your materials promptly.
We often work with foreign clients who are accused of violating IP rights (copyright, patent, trademark, right of publicity, etc.) in the United States. In recent years, we have worked with many start-up companies. But you need to understand that law firms are businesses, and lawyers need to get paid. Cases like this are never simple, and you need to be realistic about costs and fees. No competent lawyer will be able to set a flat fee for handling your case, because litigation costs are inherently unpredictable. While we do not exclusively rely on hourly billing, there is no question that the time that an attorney must devote to a matter must be considered in calculating fees. We have moved away from hourly billing per se, but we insist on agreeing with our clients on reasoanable monthly litigation budgets, and we generally require that the client pay a retainer sufficient to cover the budget for two months or more.
I am not trying to scare you, but you need to be realistic about your situation. Start up companies are particularly vulnerable to litigation attacks by competitors, because your competitors may recognize that the litigation costs you will face may wipe you out, or at least place you in an unfavorable position when it comes to settlement negotiations. Nonetheless, you should know that my firm works with start up companies facing such uncertainties and risks on an almost daily basis, and we can help you navigate through the process in an efficient and cost-effective manner. Most importantly, my philosophy is to try to help clients in your situation settle these types of disputes expeditiously--and hopefully before litigation commences. There is almost always a deal to be made that works for all concerned, and the job of IP counsel is to help you make a deal that protects your interests, taking into account the potentially huge costs and risks associated with litigation.
Nonetheless, if litigation is necessary, we are prepared to handle the litigation for you, and we will try the case if necessary. It is important to negotiate from a position of strength, and that means you need to retain counsel who is prepared to go the distance, and you need to be prepared to invest sufficient funds to make your adversaries understand that you are quite willing to litigate the matter to conclusion if a favorable settlement cannot be achieved.
Q: Will a U.S lawyer still help me, even if I am based in the U.K?
R: Of course. You could be on the moon and yet still hire a U.S.-based attorney to handle a U.S.-based legal dispute. In fact, ONLY a U.S.-based, licensed attorney can handle legal disputes in the United States.
You need to be aware how hiring an attorney works. Very few will spend their own time learning the ins and outs of your dispute. That chore quite often takes a substantial amount of time [whether you think so or not]. So your first payment to your attorney will be to pay him or her to learn all the facts [even those that you don't think are relevant] and to make a initial assessment of the various issues. Most often you'll be charged an hourly rate for that work. [Yes, colleagues, I know some of us will take on this chore gratis].
Only after that exercise is done can the attorney even think about how to bill you for trying to resolve the dispute. Sometimes a flat fee [for a defined course of conduct] makes sense. Sometimes it doesn't -- the alternative being an hourly rate. Sometimes it makes sense to agree ahead of time to a flat rate to do XYZ and if that doesn't resolve the problem then you start paying by the hour.
NO competent attorney will guarantee his or her broad estimate of the cost to deal with a disputed legal matter. Quite often a flat fee is charged for drafting contracts, company policies, etc [transactional documents]. But adversarial proceedings are very unpredictable. Your opponent could be -- and often is -- entirely unreasonable. Taking the time to deal with an unreasonable opponent is very costly.
One more thing: No attorney will agree to file suit or defend a lawsuit on your behalf w/o receiving from you a sizable retainer [in the 10's of thousands of dollars]. So if you want to be adversarial in this matter, but cannot afford a lawsuit, you're treading on very thin ice.
Final thing: taking the time to deal with an unreasonable client is not only frustrating but ultimately self-defeating because the client has to pay for that hand-holding -- which they don't like. So before you hire an attorney get straight in your mind that you're not hiring a cheerleader, friend, or therapist -- you're hiring a professional to perform a highly skilled service.
Certainly a U.S. based lawyer can represent a client in another country, and you should have no problem finding one able to help you, and with phones/skype/faxes/email/ International FedEx/PayPal, your distance shouldn't be a barrier to supplying evidence and payment to the lawyer and communicating with the lawyer.
As for finding a lawyer who will represent you on a "flat fee" basis, I don't know, this doesn't seem like that kind of work, but that's up to whatever you and the lawyer agree on.
Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.
It's certainly possible for an attorney to represent a client from another country. Over the years in my practice, I've represented a number of clients from the UK, Belgium, France, Spain, Japan, Vietnam, Lithuania, etc.
I frequently work on flat-fee or so-called "value based" billing structures. After all, clients are not concerned with how many hours I spend on their matter, but rather with how much it COSTS to accomplish the task at hand.
As my esteemed colleagues have already explained, however, it is impossible to determine what the appropriate fee should be without knowing much more about the situation.
Feel free to give me a call, or contact me directly to arrange an appointment. I'd be glad to take some time for a brief interview in which we can discuss things a bit, and then I can give you a quote. Of course, if investigation reveals things which increase the complexity of the matter, the fee will increase accordingly.
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