Our articles frequently focus on the mechanisms available to protect various forms of intellectual property (IP) and what types of IP can be protected with federal registration or a patent. But how can your client (the IP creator or owner) really prevent the theft of that protected IP – in the real world? How do you protect it once it is registered, recorded, or patented? How can theft or infringement be prevented in an information driven world where most people are perpetually online? Of course, a state or federal trademark registration, copyright registration, and/or an issued patent are each a deterrent to infringement, but can we prevent infringement in the first place?
A particular danger of IP theft is that it can continue unnoticed for a long time – compounding the damage. When unnoticed, a competitor can gain an unfair advantage in the marketplace by exploiting the goodwill in your client’s brand or innovating off your client’s proprietary know-how. IP theft itself is generally a deliberate act (although occasionally, we come across a party who claims that its infringement was innocent (under the misguided adage: “Imitation is the sincerest form of flattery!”).
To protect a client’s investment in IP, best practices include implementing practices that aid in the prevention of unauthorized access, removal of vulnerabilities which might expose your client’s strategies, branding, and/or proprietary information too early, and of course, early detection.
Prevention of Unauthorized Access
Limiting access to sensitive data and systems, applications and works in progress to only a small group of defined users can reduce the chance of unintended dissemination of sensitive information and make it more difficult for malicious access to occur. Regularly reviewing who has access to sensitive data, campaigns in progress and other product under development can also serve to reduce the risk of unauthorized access to proprietary information.
Your client’s employees can be the first line of defense in protecting IP and preventing infringement before it occurs. Employee education as to the value of an entity’s IP and the procedures for handling sensitive data before it is made public can aid in protecting IP.
Outside of the internet, when inventors or brand owners meet with potential manufacturers or meet to discuss licensing opportunities, non-disclosure and confidentiality agreements are critical, while filing a precautionary provisional application to cover an invention before meeting with others also adds an important a layer of IP protection.
Removal of Vulnerabilities
The most obvious vulnerability to remove may be those cybersecurity weaknesses in an organization. Online threats to data and sensitive information abound. Emailing confidential ideas and materials is commonplace, but eliminating the risks that this material can be lost or stolen or inadvertently made public will further aid in protecting IP. At a high level, cybersecurity risk assessments are essential. At a basic level, password protecting files and using secure sharing services for sending files is a minimum action.
Early Detection
While protecting sensitive data and confidential materials from unauthorized access or publication is a front-line approach, early detection of IP infringement is also important. One way to detect the early theft of material is to undertake regular “watch” efforts which may be searches or sweeps for activity that involves relevant branding, trademarks, products, advertising campaigns, or other proprietary information that appears to infringe your client’s IP rights. If you can identify actors that may have appropriated materials from a client, the materials can be retrieved, and the actor can be stopped. It also pays to be vigilant in watching shared spaces (e.g., competitors, common marketplaces, and online marketplaces known for a flow of counterfeit and/or copycat goods). Your client should regularly watch for the presence of products, artwork or other infringing elements.
Advising clients to proactively work to prevent infringement of their IP rights can not only preserve their competitive advantages and prevent financial losses, but also maintains brand reputations and customer trust. Protecting intellectual property isn’t just about preventing theft; it’s also about protecting the core value of a business!
