Policing and Enforcing Your Trade Secrets and Other Intellectual Property Rights
It is not enough to merely acquire rights to intellectual property. Whether dealing with copyright, trademark, patent or trade secret, establishing your right to use a piece of intellectual property is not the end of the process—it is only the beginning. If you establish a trademark, for example, and others begin to infringe on it, you can lose your trademark protection if you fail to take aggressive action.
If you have a trade secret that is exposed to the world, it’s no longer a secret, and may lose all legal protections (depending on the way it was exposed). Even if you do not lose your rights entirely, your rights may be narrowed by a court as a result of your failure to enforce your rights. Similarly, if you do not go around aggressively enforcing your copyrights, this can burn you in the long run. If you allow minor infringements because you “don’t mind” the people who are infringing, you may lose power to enforce those rights selectively in the future against people who you think should have to pay for infringement (or licenses for your work).
How do I enforce my intellectual property rights?
So, you should carefully guard your rights—but how? While it’s important to get personalized legal review and advice of your rights and how to protect them, there are a few general ways to go about this. Here are three overarching protections for your intellectual property.
1. Establish appropriate measures for protecting your intellectual property “from the inside.”
Maybe it’s a surprise to hear that intellectual property theft often comes from “insiders,” but it’s important to start your protection efforts there. Who are your insiders? Insiders are the employees, contractors, co-owners, investors, developers and other individuals or companies who might have casual access to protected information.
In the world of trade secrets, this is especially important. The Uniform Trade Secrets Act, along with federal law, provides that the measures you take to protect your secret are a major part of what determines whether it is a secret worth protecting by a court or not. In other words, you need to have appropriate measures in place for protecting these secrets on your IT network. You should have written agreements with contractors and employees before you share the information you wish to protect. And you shouldn’t share your secrets with just everyone in the company. It should be a “need to know” basis.
What do your policies say about the data? Who is allowed to access formulas or important data? Who has access to the customer lists that you are saying are secret? Do you share these freely with customers? These and other policies and protections have an impact on whether a court considers them protected or not.
But for “non-secret” property that is protected by registration, these protections are still important. Is anyone at the University allowed to slap your logo on your documents? Do you have branding manuals or restrictions on how and when to use protected marks? Can your contractors use the mark for their items they produce, or does it have to go through an approval process first?
Your copyrighted material may be protected, but can an employee re-write something and repost it on the business website? Can they re-use a popular piece of your literature in something they’re working on? Keeping these items “locked down” is an important first step in keeping them protected.
The good news is that you generally have more control with insiders, so creating these policies and procedures, while sometimes tedious, is totally within your control to do.
2. Establish an external protection database.
When it comes to protecting trademarks, copyrights, and other intellectual property, you also will need to show a court that you have aggressively pursued stopping others from using your rights. When it comes to things like the trademark database, that means you need to be doing regular searches to make sure that nobody is trying to register marks that are similar to yours. Sometimes, trademark holders failing to object to someone else using a trademark have lost their protections altogether. You want to make sure that this does not happen to you.
Establish a system for regularly searching the USPTO or hire an external company or law firm to do the work for you. The state database where corporate and LLC entities are filed can be checked regularly, as can state trademark databases. You should establish a system where you search the internet for similar copyrights by reverse image searching. Ensure that no one is using your material and, when you see it, be sure to aggressively pursue enforcement.
3. Get appropriate licenses.
But what about when you want to allow a use? Perhaps you come across an infringing use by a student, school or by a small business with a creative and moderately successful use of your image or product. Can you allow them to use it? Yes! But don’t just look the other way. License it.
When you do allow others to use your IP without licenses, you weaken your rights. When you allow them to use it with licenses, you strengthen your rights (in most cases). Make sure the product is of a quality your brand is associated with, have a clear contract with provisions for protecting that quality, and get yourself some royalties while promoting the small business you’re working with.
Even if you’re just giving grace to someone who used your property in error, be sure to get a license agreement. Showing that you are licensing your mark, your copyright, or your patented work is another way to show courts that you are serious about protecting your rights. This ensures that you do not lose the right to pursue it against others because of lax enforcement all along.
Conclusion: protect your IP!
It can be challenging to know when and how to enforce your intellectual rights, which is why it is important to have an experienced professional to guide you through the process. Call Cornerstone Law Firm to set up a consultation with an experienced attorney who can help you through this process.
