There's Been an IP Murder!
It is a sad fact that, statistically, if someone is murdered, it is highly likely that the crime was committed by someone they know. Murderers often have: a depth of knowledge of; motive to harm; and access to – the victim. The same is true for IP.
The same goes for IP.
IP, being what it is, can be the lifeblood of businesses. Whether it’s:
- Core brand elements (logos, slogans, get-up, brand names)
- Creative outputs (images, music, websites, written material, videos…)
- Inventions (secret technology, formulations and processes…)
- Unique know-how (client lists, supplier lists, critical business info…)
- Designs (original 2D and 3D designs…)
And even the largest, most well-known businesses can be mortally wounded if dealt a killing blow through IP theft. And who’s most likely to be found holding the knife…? A familiar face.
Who Murdered My IP? The Usual Suspects
The ex-business partner
Establishing a business can put a lot of stress on even the strongest working relationships. It is not uncommon for these to strain and break under the pressure. That goes for even the closest of business partners. Usually, this throws the status of business-critical IP into question. Either it has been registered in one partner’s name early on (rather than the business) and they can walk away with important assets (e.g. a trade mark). Or, the exiled partner can quickly set up their own competitor with the critical info, they were privy to in the boardroom, which was not protected. It’s vital to make sure that IP is protected, in case of any eventuality. Even if worst-comes-to-worst and you and your business partner part ways.
The jilted ex-employee
Employees who leave a business are also commonly found with the smoking gun. Like business partners, employees have access to important IP – which often is not secured. What’s more, employees who leave under a dark cloud may have the motivation to strike back at what they see as unfair treatment. Depending on the level of access employees have, and their awareness of the status of IP in the business – this can cause serious peril.
This is especially so if:
1) the organisation is large,
2) there is a high turnover of employees and
3) these employees all have access to critical info. (The same goes for interns and work experience candidates!)
It’s key to make sure that employees are subject to appropriate non-disclosure and confidentiality actions – as well as limiting their access to important material.
The opportunist further afield
When expanding internationally businesses often work closely with international: agents, distributors, licensees, franchisees and manufacturers; to ensure their success. In doing so they may share: designs, trade marks, patents and other key IP. Expanding internationally can be fraught with pitfalls – as protection that is in place at home may not be in place further afield. As such, businesses can act with confidence where they should actually be more cautious. Those working closest to the business are typically those most likely to see these opportunities – particularly if you rely on them within that marketplace.
For example: given your design, a manufacturer may later create a competing design; or a distributor may register a rival trade mark in the local language. This can be even more difficult to detect and remedy when it’s occurring away from home. Out of sight, and sadly often out of mind. As a result, it is paramount you secure your IP before expanding internationally. Whilst these are the usual suspects, it’s not an exhaustive list…
Remember: the closer they are to you – the easier it is for them to stick the knife in!
How to Look After Your Business
It would be remiss of us to frighten you without providing at least a little bit of information about how to protect your business from a deadly blow. So here are a few common-sense provisions to do – to best protect your business from harm. (Remember, you don’t know what you’ve got until it’s gone…)
An ounce of prevention is worth a pound of cure…
- Limit the amount of people that are aware of your key IP (e.g. in R&D projects/privy to info in critical work areas)
- Make sure that 3rd parties (e.g. contractors and manufacturers) sign non-disclosure agreements
- Prevent other parties from registering your IP by doing so beforehand – prioritizing the key assets and jurisdictions where risk of harm is highest
- Educate consumers about the dangers of using counterfeit or “knock-off” versions in lieu of your original product – making them quality conscious.
Keeping an eye out…
- Use price comparison websites to find (cheaper) alternatives to your product – research and review manufacturers and producers producing them.
- Set up online alerts for words describing unique characteristics of your products – check and review whenever these are used to describe other products.
- Create a feedback mechanism with your sales team and research their claims when they state they’re losing deals to cheaper alternatives or new competitors
- Routinely search and review IP databases to identify applications that may infringe your IP
- Reverse-engineer products or software where necessary to establish whether your rights were breached.
(3) Fighting Back
Stopping it dead in its tracks…
- If you are sure that theft is occurring, and it will significantly harm your business you can instruct a solicitor to send a cease and desist letter.
- Thereafter you can sue to the infringer seeking either a court order that they stop – and/or, pay damages as a remedy to the harm committed.
Whenever you look to fight back – make sure that you instruct professionals to fight in your corner.
Who Murdered My IP? Conclusion
Many businesses have suffered from IP theft and have been left on life support. Sadly, wishful thinking will not impact the fact that this typically stems from those closest to the business. The idioms ring true: it’s better the devil you know; and, it’s better to be safe than sorry.