LEGAL KEEPING THE LID ON A VALUABLE SECRET When it comes to dealing with issues around Intellectual Property, Jennifer Puplava of the Mika Meyers law firm says “being explicit” is one of the key principles. Stepping back for a broader perspective of all that involves IP, Dukarski of Butzel Long says trade secrets may be as important as a patent or trademark, especially in that people, as imperfect as they are, are poten-tially a big part of the issue. “Think about a company where there are employees leaving to go work at another firm and you’re looking at millions of dollars walking out the door with the secret sauce,” she said. It’s the kind of practice, as seemingly sloppy as it might be, that Dukarski has seen taking place, one example being employees taking entire hard drives of files that were critical to an organization and which could be used elsewhere if no action was taken against what would have been a case of copyright infringement. Or even in the realm of plastic surgery, where “before and after” photographs were passed off as the work of another company. The important point, says Dukarski, is that these kinds of violations aren’t limited to a specific industry. “Some of the facts and cases are pretty amazing,” she said. The inherent value of what might other-wise be considered an “intangible” asset 42 • Corp! january/february 2018 shouldn’t be overlooked, said Dukarski. “Companies ought to treat IP, including the patents, trademarks and processes that are required to produce goods and services, especially in the automotive realm, like the assets that they are,” she added. “Those have more value than someone might think.” Dukarski takes that cautionary note even further. “A company should consider conducting an audit to determine its value, taking care not to discount something like the know-how.” But protecting IP has to be a strategy that goes further than what some might think, said Dukarski. “What I immediately do when faced with a dispute is to pull out the agreements that a company has asked people to sign, things like visitor sign-up sheets,” she adds. “Does it say that they can’t bring a camera into facility? Is there a proper non-disclosure agreement involved? And what about things like drawings? Does it say anywhere that these things are confidential?” Dukarski then cuts to the chase. “If you don’t have protections in place, the information isn’t confidential. And when that happens, you no longer have a trade secret. It can’t be registered and it’s only as good as it is if you have it hidden.” Consider the recipe for Coca-Cola as an example. “If it appeared on the internet, it’s com-pletely gone,” said Dukarski. And then there’s that block of “legalese” at the bottom of untold numbers of emails that get sent out every day, words that essen-tially warn off the recipient (intended or oth-erwise) that the information in the email (along with “any documents, files or previ-ous email messages attached to it) is legally privileged. The wording is not unintentional, in that it “warns off” someone who might otherwise “spread the word” beyond the people that should be reading what’s being sent and admonishing them to “destroy the original transmission and its attachments without reading or saving in any manner.” Dukarski said the warnings should never be overlooked, especially by those who are sending the documents. “It floors me how many times people can mess up by sending out information without having a disclaimer as part of the email,” she added.