Reminders Not to Misuse Intellectual Property May Help Avoid Liability or Reduce Damages
Companies should provide periodic reminders to all personnel about not misusing someone else’s intellectual property. For companies creating intellectual property — be it software, advertising, marketing material, artwork or an invention — infringing on a third party’s patent, copyright, trademark or trade secret is always a risk. A company should consistently remind employees to be careful that only original works, or properly licensed materials, should be included in creations the company uses for itself or provides to others. In addition to keeping the company out of trouble by reminding new and old employees to avoid infringement, the practice of providing periodic reminders may also help to reduce liability if the company is sued for infringement. Providing notice, and documenting that notices have been given, may help shield a company from liability, or at least reduce damages in an infringement suit against the company, such as when a rogue employee is the cause of the infringement. An intention to infringe is often a factor in calculating intellectual property infringement damages. A consistent documented program of warning employees could be good evidence to negate any claim that the company fosters infringement as part of its business plan.
Ned T. Himmelrich
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