By Maureen T. McKay and Murray Gottheil
Recent events in Venezuela have us thinking about the expression, “might means right,” and what it means for our legal systems.
Some years ago, a small client of ours had a cool trademark, which they properly registered and were actively using. Along came a multinational corporation, which we will call “Bully Corp.
Bully Corp. wanted to use an identical trademark in a similar industry. It could have offered to purchase, or license, the trademark. It did not. Instead, Bully Corp. retained a Big Law firm, which we will call “Soulless, Hired & Gun” to commence an action to have our client’s trademark expunged. No notice. No demand. Just the commencement of legal proceedings which would have been expensive for our client to fight.
The strategy of Bully Corp. and Soulless, Hired & Gun was simple. Their claim had no merit, but their bank account had no limit. Their plan was to use shock and awe. Intimidate the little guy. Take what you want because you can.
It worked out okay for our client. We bluffed that we were willing to defend the action, and Bully Corp. purchased the trademark for an amount of cash that looked reasonable when compared to the cost of defending the claim. Our client had to find another name.
It does not take too long in the legal profession to figure out that the system favours those with deep pockets, and we often used the leverage that a wealthy client had to their advantage. However, we had rarely seen such a blatant example of the mighty not even bothering to pretend that they had some colour of right before abusing their financial position to steal from a weaker party. And as for Soulless, Hired & Gun? Did their lawyers really go to law school just to be well-dressed gangsters?
We will not defend the evils of Nicolas Maduro, but nor will we applaud the United States using its military might (without the authorization of Congress) to invade another country and kidnap him. We might think differently if they immediately left the country without expressing their intention to take control of its oil. Or perhaps we would be of a different mind if they did the same to dictators of countries without oil because they care about human rights. But for now, we are left thinking that our business leaders and our political leaders are all just variations on the same theme.
Just like the lawyers at Soulless, Hired & Gun who helped Bully Corp. steal our client’s trademark, we will see even more highly placed, and well compensated, lawyers defend and facilitate the theft of the oil fields in Venezuela.
Might may not make right in the moral sense, but it does seem to mean the right to take whatever one wants in today’s world. If we accept that premise, then the Rule of Law is dead, and we descend into a world of violence and chaos. Who exactly wants that? (It is not a rhetorical question.)
This article was originally published by Law360 Canada, part of LexisNexis Canada Inc.