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Intellectual property is ubiquitous — but often overlooked — in modern life. While thinking about going to the movies this weekend, you look up the showtimes at your local theater on a website. There was some box to click “OK” or “Accept” before seeing the matinee schedule. Oops, there goes your personal data.
You post a meme on your social media account. Did you just infringe something? What was it? And who owned it?
When teaching trademark law, I begin the course by having students examine the things within their immediate grasp to look for trademarks. The usual items — electronics, textbooks, clothes, desk chair, even a notebook — are all branded. The care that goes into choosing these items varies widely — for example, a curated designer handbag versus a pen found on the floor of the seminar before — but all carry symbols and reputation of their sources out into the world.
And consider your smartphone, the pocket computer with dozens (hundreds?) of apps constantly interfacing with untold numbers of servers and processes on hardware that could be literally out of this world.
These everyday contacts with IP carry over to the business world. Do you know where your corporate logo came from? Are field sales staff spreading company data? What is stopping your supplier from selling your cleverly designed part to your rival? (Or worse, what is stopping your supplier from selling your clever idea, disguised in a different package, to your rival?)
The “IP audit” is becoming a more common business practice to understand and evaluate the IP assets of the company. But this is a formal, structured task outside of your normal operations. By the time the next “audit” cycle occurs, the business may look much different and the prior results inapplicable.
A more comprehensive approach is to adopt an attitude of wearing imaginary IP goggles. Like night vision, 3D cinema glasses or a fish finder, your new IP goggles will let you experience the world from a new perspective. Some of these things you may have noticed before, but the magic goggles highlight or sharpen the features. While it’s just another day issuing a routine purchase order for procurement, you see a supply agreement that gives too much control over your information to a third party. Marketing brings in a creative consultant for an afternoon, but to you it’s not clear who owns the resulting work. Your software team is making rapid progress while you start to question their reliance on open-source resources and the generative AI du jour. The sales pitch for your upcoming product is being finalized, and you ask yourself, “What is stopping our competitors from doing the same thing?”
With your IP goggles on, do you start to see IP everywhere? (The answer should be “yes,” a la the familiar adage about hammer and nail.) Good. Now the next step is where judgment comes in. You have recognized that there is an IP issue, whether it be some creative asset of yours that you could try to protect or a risk of trampling on the rights of others. Here is the real power of the IP goggles: You can take them off. Back to normal vision but bearing in mind the recent IP-colored glasses, you look at the problem with other considerations in mind and decide on a course of action. These other considerations include the practicalities of the business and market you operate in, regulatory issues, customer relationships, your IT infrastructure, other legal doctrines and, of course, costs.
IP does not have to be the controlling factor. While you may be able to see IP everywhere, that does not mean IP is everything. The important point is to have your IP goggles available and get comfortable using them so you can recognize more of the opportunities and hazards associated with IP.•
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Hartz is an intellectual property attorney and partner with Woodard, Emhardt, Henry, Reeves & Wagner LLP.
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