Posts in Business

The Global Innovation Policy Center (GIPC) of the U.S. Chamber of Commerce issued its 11th annual International IP Index today, striking what seems like a more dismal tone than usual compared with past reports. While 18 economies saw modest progress on IP protection improvements, 28 economies, including many of the high-scorers, like the United States and the United Kingdom, had a 0% change in score. Only two countries had a 0% change in the 10th edition of the Index. The Index covers 55 economies that represent “most of the global economic output, together contributing over 90% of global GDP.”

In January 2023, the Federal Trade Commission (FTC) unveiled a proposed ban on non-compete clauses that prohibits employees from joining or forming competitive firms following the termination of their employment. According to the FTC, non-compete clauses unfairly and unnecessarily stifle employees’ ability to pursue better employment opportunities. While this criticism may ring true in the case of lower-wage workers, such as restaurant and warehouse employees, even the staunchest critics of non-compete clauses will typically acknowledge that they can — and often do — play a legitimate role in the protection of trade secrets. This is why the FTC’s proposed rulemaking is causing consternation in the intellectual property community.

A report released  Wednesday by MarqVision found that 68% of direct-to-customer (DTC) brands have had their products counterfeited. The report surveyed 295 representatives from DTC brands across the world. The report also provides information about how worried DTC brands are about IP infringement and counterfeiting. The DTC market has tripled over the last five years, accounting now for $1 of every $7 spent, according to the report.

Engagement in proactive IP litigation by global companies is the bedrock of trademark enforcement, and Adidas is no stranger to this strategy. Since 2008, this athleisure accessories manufacturer has consistently protected its intellectual property by signing over 200 settlement agreements and fighting more than 90 court battles. Most recently, on  January 12, 2023, Adidas’s efforts to sue Thom Browne Inc., a Zegna subsidiary, for trademark infringement of its ‘three-stripes logo’ was foiled. The damages claim of around $7.8 million, or £6.4 million, backfired on the German sportswear giant when it was denied by an eight-person Manhattan jury.

Every inventor has, at one time or another, had the moment where all seems lost. Every avenue that could possibly yield a fruitful alleyway towards profitability has been trodden, and each industry contact that could potentially offer a path towards success has been contacted. The item that began as a simple idea, was built into a homemade prototype, and was eventually turned into a real product by a professional design firm, has not gotten the interest from the industry that had been dreamed of. This realization can be a serious cause for grief for those who have spent countless hours defining and tweaking their product, building relationships with designers, patent attorneys, industry insiders, and other inventors, and still have not achieved their ultimate goal of successfully bringing their product to market. These periods of time can be difficult, as it can feel like you are saying goodbye to a friend that has brought you so much hope, and joy throughout the development process.

The Office of the United States Trade Representative (USTR) this morning announced support for delaying the deadline to decide whether to extend a waiver of intellectual property rights under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to diagnostics and therapeutics. The USTR also said it has asked the United States International Trade Commission (USITC) “to launch an investigation into COVID-19 diagnostics and therapeutics and provide information on market dynamics to help inform the discussion around supply and demand, price points, the relationship between testing and treating, and production and access.”

The United States Patent and Trademark Office (USPTO) on Wednesday launched the Women’s Entrepreneurship (WE) initiative to “inspire women and tap their potential to meaningfully increase equity, job creation, and economic prosperity.” The initiative is a collaborative effort with the United States Department of Commerce. “Unleashing the potential of women entrepreneurs is good for business, good for families and good for our economy,” said U.S. Secretary of Commerce Gina Raimondo.

For many intellectual property lawyers, the search for a local associate to assist with IP filings around the world begins and ends with a quick email to colleagues asking who knows someone in a particular country. And while personal connections are important, this method probably won’t lead to the best legal services for your clients. As we emerge from the pandemic and return to face-to-face meetings, here are several tips for vetting foreign associates. This process ideally starts overseas and leads to in-person conversations, but text chats and video calls still have value.

Trust and estate attorneys regularly advise their clients to enter into prenuptial agreements to protect the valuable assets each spouse brings to the marriage as well as how to distribute community property in the event of a divorce. Brand collaborations with celebrities, influencers or other brands are much like marriages, but brand collaborations are even more unlikely to last. Why not plan for the split, whether it be a conscious uncoupling or a Page 6 kind of divorce, with a prenup? The high profile split between Adidas and Ye (fka Kanye West) reminds us that collaboration agreements should not only plan for the best of times, but it is worth setting up the agreement to account for a sudden and troubling end.   

It was February 2017 when Waymo, Google’s self-driving car unit, sued Uber in what would become the biggest trade secret case of the century. Waymo alleged that its former manager, Anthony Levandowski, had organized a competing company while still at Waymo, and before leaving had downloaded 14,000 confidential documents. As it turned out, Uber had known about this when it agreed to pay $680 million for Levandowski’s brand new startup; and we’ve already looked at how the hubris of that hasty transaction provides lessons for hiring in new markets driven by emerging technology.

Usain Bolt filed a recent U.S. trademark application depicting his widely recognized victory pose. The trademark has been applied for in relation to items such as clothing, jewellery, shoes and restaurant and bar services. As Bolt has retired from athletics, he is clearly hoping to add more strings to his bow.

Without unlimited funds, a constant issue for developing and maintaining a patent portfolio is how to balance between obtaining the highest quality patents and obtaining patents at a lower cost to grow a portfolio. When biasing towards a reduced cost, some aspects of a well-written patent application may also be sacrificed. Some of these items may be more critical to a patent that is likely to be enforced, whereas other items may be more valuable to building a robust patent family based on that disclosure. In any event, there is always an opportunity to pursue a patent with a strategic focus. The below non-exhaustive list includes some common items that may be included in a more comprehensive patent application preparation and prosecution process that aims for higher quality and other items that may be sacrificed in a more cost-sensitive patent application process. Of course, the approach here does not recommend removing or foregoing any items from the patent application process, but these items are available for consideration when there are budgetary constraints.

As discussed in Part I of this series, the process of implementing IP management software (IPMS) poses many complexities and dangers. To ensure as successful an IPMS implementation as possible, companies and law firms should apply best practices early on. The earlier they begin taking these steps, and the more deeply they dig into the issues, the greater their chances of avoiding the most common implementation pitfalls.

Protecting brands and going after counterfeiters is like herding cats. There are hundreds, if not thousands, of ways that online counterfeiters illegally monetize brands. Companies have many ways to combat them, but it can traditionally take lots of time, cost, and resources to do it. Now there is a less publicized option in the United States which can deter counterfeiters, takes little time, and often even pays for itself. This ultimately can result in true deterrence of counterfeiters for a brand in online marketplaces. With online sales exploding, there has been a marked increase in sales of counterfeit products, despite various solutions available to combat it. Indeed, the industry as a whole will see over $1.7 trillion of sold counterfeit products on various online platforms each year—and that estimate, by the International Anti-Counterfeiting Coalition, was in 2015. Counterfeit sales result in the loss of millions of U.S. jobs and lost profits, and is by far the world’s largest criminal enterprise, with eCommerce counterfeit sales expected to grow to $6 trillion by 2024 in the United States alone. 

Imagine that your family has decided to build a new home. You’ve got the vision, but you need to call in the pros—a well-established, highly expert homebuilder with a cadre of architects, designers, contractors, and tradespeople. You’re relying upon the builder’s expertise to thoughtfully scope the project and prepare you for what lies ahead. This includes (a) helping you understand what financial and other commitments will be required of you; (b) educating you on challenges you’ll face along the way; and (c) highlighting available offerings that align with your vision….. Now imagine that your company or law firm has decided to implement intellectual property management software (IPMS) with a vendor. In a worst-case implementation scenario, you may feel like you’re reliving the above homebuilding saga. Indeed, IP teams often embark on the IPMS journey with great optimism. Once in the thick of implementation, however, they may experience a turbulent journey.