REPORT: TRADE SECRET LITIGATION PREDICTED TO INCREASE

Like any creative business, architects rely on their intellectual property. Their designs are at the center of their work. For example, as we discussed in a previous post, many architects nowadays focus on creating new ways for their building designs to be environmentally friendly and sustainable. However, nearly every form of intellectual property faces the risk of theft or infringement in the business world. Architects face unique challenges with their copyrights – as well as risks. COPYRIGHT ISSUES IN THE ARCHITECTURE WORLD One of the biggest issues, of course, is that there are many aspects of building designs that architects cannot protect by copyright. This is simply because various details are fundamental in the construction of every building. One person cannot own the rights to such a common design. Even so, there are several elements of a design architects can copyright. These include: Drawings Site plans Certain elements of designs, such as a new sustainable design Additionally, architects own their original designs. However, ownership often comes into question. Owners of the building – or the party who commissioned the building – may believe they have ownership rights. Architects must ensure they proactively address ownership in their initial agreements to avoid disputes as well as the risk of infringement. Yet, another issue remains. Many architectural designs are easily accessible to the public through online public records. What about other parties who may access records and attempt to use copyrighted material? CALIFORNIA LAW AIMS TO IMPROVE COPYRIGHT PROTECTIONS Regarding access to designs, a new law could change the game for California architects. The state lawmakers passed a bill that will restrict the public’s ability to access copyrighted architectural drawings beginning January 2023. This new law will hopefully help to increase protections for the innovative designs that architects work so hard to create – and essentially depend on to establish business. We may not see the impacts of this law until next year. In the meantime, and even when this law takes effect, architectural firms should still ensure they take critical steps now to monitor and secure their intellectual property rights.

Competition plays a significant role in the success of your business. It also promotes innovation, imagination and creativity which you may ultimately transform into protectable intellectual property rights. Your advances, however, may invite competitors to infringe on your intellectual property rights. In today’s digital age, it is especially easy for business owners to launch their designs and get them in front of consumers. It is also easier than ever for competitors to copy those designs. Copycats are an increasing risk businesses face. So, what should California business owners do if a competitor copies their design, for example? BEFORE: PROACTIVE STEPS FOR PROTECTION As a threshold matter, it is critical for business owners to take steps to protect their designs long before they face the risk of a competitor copying their design. When first creating a design, you should: Understand the rules: Learn what designs the law protects, as well as how these protections work in the event of an infringement. Protect your intellectual property: Take the steps to establish and secure the ownership rights and protections of your intellectual property. Properly register your work with the U.S. Copyright Office and obtain a trademark for your logo or brand design. Make a plan: This step is twofold. Create policies and establish security measures that protect your intellectual property. Additionally, consider your strategy for how you will handle the situation if a competitor does copy your design. AFTER: STEPS TO TAKE IF THE DESIGN WAS COPIED If a competitor has copied your design, then immediately: Consult legal counsel: It is important to ensure you understand your rights as well as your options for moving forward to protect your intellectual property. Seeking professional counsel can help you manage this issue while still focusing on your business. Send a cease and desist letter: This is an essential step. It gives your competitor legal notice that they are infringing on your rights. These letters require careful, precise language. That is one of the reasons why it is important to consult counsel before sending a cease and desist letter to the infringing competitor. Take legal action: If you send a cease and desist letter and the competitor continues to use the copied design, then you can file a lawsuit to secure your rights and recover the damages your business may have suffered. Be proactive! You own the design that is unique to your business. It is what possibly gives you the edge in the business world, so take steps to protect it.

Business owners know the importance of monitoring the presence of their brand – and their trademarks – online. It is a critical issue we have covered before in previous blog posts. Monitoring trademarks and brands may have become easier with the help of technology and social media, but it also became more essential. Many businesses take advantage of social media and the e-commerce market, but they must also be prepared to manage the risks. One of these risks includes counterfeit products. WHAT IS THE RISK OF COUNTERFEITING? Most counterfeit products target luxury goods, such as clothing brands, but many types of businesses could be a target. Counterfeit products pose serious threats, including: Loss of sales and profits Customer confusion Damage to the brand Additionally, the risk of counterfeiting is increasing. This is due in part to the e-commerce boom. Online markets are useful for businesses and convenient for consumers, but it is also easier for parties to sell forged products. Business owners can take legal action against counterfeiters. As long as they have the evidence necessary to prove infringement, they can pursue a claim to protect their business and mitigate the damages they face. In these situations, it is often beneficial to seek guidance from an experienced business and intellectual property attorney. TRACKING TRADEMARKS IS MORE IMPORTANT THAN EVER To counter this threat, many companies are teaming up. Most recently, fashion giant Gucci and social media giant Facebook filed a lawsuit in California against a counterfeiter. The individual used Facebook and Instagram to sell fake Gucci products. Combining forces could allow the businesses to stop the current counterfeiting, but it could also set a precedent to prevent it in the future. Even so, companies should be mindful of these risks when they do business online. They should also make sure they monitor their trademark carefully. Whether they outsource this service or have a team in-house dedicated to tracking trademark use, this is a critical step to minimize the risks.