Pattishall IP Blog

January 20, 2015

2015 Resolution: Privacy Compliance

Filed under: Privacy — Tags: , , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 11:05 am

Jason Koransky F HRby Jason Koransky, Associate

“Privacy law” cannot be confined to a small, orderly box. Rather, it is a complicated, sprawling, and sometimes difficult tangle of federal and state laws. From the federal Fair Credit Reporting Act and Electronic Communications Privacy Act to state laws addressing use and disclosure of arrest and conviction information, privacy law implicates a broad range of business activities.

Importantly, these laws have major implications for companies that gather, assemble, or otherwise use their customers’ personal identifying information. With so many different types of businesses increasingly focused on creating relationships with their customers by collecting and using personal information, these laws affect a growing number of entities — sometimes in ways that are not readily apparent. Further, data breaches that result in the release of personal information frequently appear in national headlines and often lead to lawsuits.

And privacy law constantly evolves.

For example, proposed federal legislation (the Personal Data Protection and Breach Accountability Act) could potentially create a uniform law addressing requirements to notify consumers in the event of a data breach, which would largely replace the existing patchwork of incongruous state laws. Another piece of proposed federal legislation (the Data Broker Accountability and Transparency Act) would create requirements for a business to ensure the maximum possible accuracy of the personal information it collects and provide people a means to access, review, and dispute this information. In addition, President Obama recently discussed federal legislation to protect student data.

On the state level, examples of new laws being implemented include those related to on-line privacy rights of minors, how websites can collect personal identifying information, and information that an employer may ask a potential employee on a job application.

These laws have tangible and far-reaching implications for businesses, which certainly cannot be taken lightly or ignored. Many businesses now have privacy and information-security offices, which monitor compliance and handle issues that arise. Privacy and data security audits, legal risk assessments, and finding solutions for potential red flag privacy issues are essential to minimize the risk of a data breach and minimize the liability from ensuing lawsuits. Solution-based privacy analyses include, for example:

  • Reviewing how a company uses its consumers’ personal identifying information;
  • Reviewing privacy policies associated with websites, apps, and other products or services;
  • Analyzing systems in place to train employees on the use of consumers’ personal identifying information, as well as systems in place to protect this data; and
  • Reviewing actions that have been taken in past data breaches.

While we cannot predict much of what may occur in 2015, we can say with confidence that during this year privacy issues will continue to grow, evolve, and significantly affect businesses in this information age.

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Jason Koransky is an associate with Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, a leading intellectual property law firm based in Chicago, Illinois. Pattishall McAuliffe represents both plaintiffs and defendants in trademark, copyright, trade secret and unfair competition trials and appeals, and advises its clients on a broad range of domestic and international intellectual property matters, including brand protection, Internet, and e-commerce issues. Jason’s practice focuses on trademark, trade dress, copyright and false advertising litigation, domestic and international trademark prosecution and counseling. He is co-author of the book Band Law for Bands, published by the Chicago-based Lawyers for the Creative Arts.

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May 2, 2014

Defend Trade Secrets Act Would Create Federal Private Right-of-Action For Trade Secret Misappropriation Under Economic Espionage Act

Filed under: Trade Secret — Tags: , , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 10:59 am

PB LR

 

by Phillip Barengolts, Partner

 

On April 29, Senators Orrin Hatch and Chris Coons introduced the Defend Trade Secrets Act, which would create a federal private right-of-action under Economic Espionage Act.

Currently, claims for trade secret misappropriation generally are brought in state courts regardless of the scope of the misappropriation. The resulting state-by-state protection can create problems for trade secret owners in developing global non-disclosure policies required to maintain protection for these extraordinarily valuable assets, which include secret formulas, customer lists, manufacturing techniques, business processes, advertising strategies and sales methods.

The Defend Trade Secrets Act would amend the Economic Espionage Act to provide an owner of a trade secret with significant remedies for misappropriation, including:

  • the ability to obtain an ex parte order to: a) copy electronically stored information from the alleged thief to preserve evidence of the misappropriation; and b) seize “any property used, in any manner…to commit or facilitate the” misappropriation;
  • injunctions to protect the trade secret;
  • damages for actual losses plus unjust enrichment to the extent not compensated by the award of actual losses, or a reasonable royalty in lieu of damages; and
  • if the misappropriation is willful or malicious, exemplary damages of no more than 3 times the actual damages or reasonable royalty awarded.

The requirements for the seizure order will follow those under the Lanham Act.

If the Defend Trade Secrets Act ultimately becomes law, it would provide businesses with a significant tool to protect their valuable intellectual property. Given the bipartisan support, it stands a good chance. In the meantime, companies seeking to protect their trade secrets will continue to rely upon the state-by-state protection currently in place.

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Phillip Barengolts is a partner with Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, a leading intellectual property law firm based in Chicago, Illinois. Pattishall McAuliffe represents both plaintiffs and defendants in trademark, copyright, trade secret and unfair competition trials and appeals, and advises its clients on a broad range of domestic and international intellectual property matters, including brand protection, Internet, and e-commerce issues. Mr. Barengolts’ practice focuses on litigation, transactions, and counseling in domestic and international trademark, trade dress, unfair competition, trade secret, Internet, and copyright law. He teaches trademark and copyright litigation at John Marshall Law School, and co-authored Trademark and Copyright Litigation, published by Lexis Publishing.

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October 12, 2011

The Anti-Counterfeiting Trade Agreement (ACTA) Strives to Strengthen Protection for Copyright and Trademark Owners throughout the World Against Counterfeiting and Piracy of their Products by Attempting to Harmonize the Laws of Member Nations. But will it Work?

Filed under: Counterfeiting, International — Tags: , , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 2:07 pm

Categories:  Trademark (General), Counterfeiting
Tags:  International, Phillip Barengolts, Legislation

by Phillip Barengolts, Trademark Attorney

[UPDATE 10/1/11: ACTA signed by U.S., Australia, Canada, South Korea, Japan, New Zealand, Morocco, and Singapore – all that’s left for it to come into effect is the deposit of instruments of acceptance by six of these signatories.] On November 15, 2010, the U.S. Trade Representative (USTR) released the final text of the Anti-Counterfeiting Trade Agreement (ACTA).  See it here: http://www.ustr.gov/webfm_send/2379.  [UPDATE: The final ACTA text, after legal verification in Australia, can be found here: http://www.dfat.gov.au/trade/acta/Final-ACTA-text-following-legal-verification.pdf]] It is now up to member nations to “undertake relevant domestic processes” to have ACTA ratified in each participating jurisdiction.  Below is a brief background on ACTA and a summary of its most relevant provisions.  Also, for a European perspective on ACTA, see this excellent discussion on IPKat. http://ipkitten.blogspot.com/2010/10/letter-from-amerikat-acta-its-baaaa.html.

Who are the potential member nations and when will ACTA take effect?

The participants in the negotiations over ACTA are: Australia, Austria, Belgium, Bulgaria, Canada, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Japan, the Republic of Korea, Latvia, Lithuania, Luxembourg, Malta, Mexico, Morocco, the Netherlands, New Zealand, Poland, Portugal, Romania, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, the United Kingdom, the U.S., and the European Union.  For an as yet to be determined two-year period, only they will have the opportunity to accede to ACTA, as well as any other WTO Members that the participants agree may join.  After this initial two-year period any member of the WTO may accede to ACTA simply by depositing a document noting the member’s approval of ACTA’s terms. (more…)

December 4, 2010

Fourth Time’s the Charm: Fashion Designs May Soon Receive Copyright Protection

Filed under: Copyright — Tags: , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 8:53 am

by Jasmine Davis, Trademark Attorney

On December 1, 2010, the fashion industry came a little closer to specialty copyright protection for fashion designs.  The Innovative Design Protection and Piracy Prevention Act (“IDPPPA”) was unanimously passed by the Senate Committee on the Judiciary.  The bill, introduced by New York Senator Charles Schumer, is the fashion industry’s fourth attempt to gain protection against knockoffs.   Previously, Senator Schumer had introduced three versions of the Design Piracy Prohibition Act (“DPPA”), which all faced criticism from both Congress and some members of the fashion industry.  The IDPPA, a substantial shift from the DPPA, has the support of fashion heavyweights such as Diane von Furstenberg and the Council of Fashion Designers of America, as well as organizations that previously opposed the DPPA, such as the American Apparel and Footwear Association.  Originally, the American Apparel and Footwear Association opposed the DPPA because it allowed designers to seek legal action against designs that were substantially similar to the registered designs.  The organization changed its stance and now supports the IDPPPA due to its “substantially identical” language, heightened pleading standard, and lack of a formal registration process for fashion designs. (more…)

November 19, 2010

The Anti-Counterfeiting Trade Agreement (ACTA) Strives to Strengthen Protection for Copyright and Trademark Owners throughout the World Against Counterfeiting and Piracy of their Products by Attempting to Harmonize the Laws of Member Nations. But will it Work?

Filed under: Counterfeiting, International — Tags: , , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 4:49 pm

Categories:  Trademark (General), Counterfeiting
Tags:  International, Phillip Barengolts, Legislation

by Phillip Barengolts, Trademark Attorney

On November 15, 2010, the U.S. Trade Representative (USTR) released the final text of the Anti-Counterfeiting Trade Agreement (ACTA).  See it here: http://www.ustr.gov/webfm_send/2379.  [UPDATE: The final ACTA text, after legal verification in Australia, can be found here: http://www.dfat.gov.au/trade/acta/Final-ACTA-text-following-legal-verification.pdf]] It is now up to member nations to “undertake relevant domestic processes” to have ACTA ratified in each participating jurisdiction.  Below is a brief background on ACTA and a summary of its most relevant provisions.  Also, for a European perspective on ACTA, see this excellent discussion on IPKat. http://ipkitten.blogspot.com/2010/10/letter-from-amerikat-acta-its-baaaa.html.

Who are the potential member nations and when will ACTA take effect?

The participants in the negotiations over ACTA are: Australia, Austria, Belgium, Bulgaria, Canada, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Japan, the Republic of Korea, Latvia, Lithuania, Luxembourg, Malta, Mexico, Morocco, the Netherlands, New Zealand, Poland, Portugal, Romania, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, the United Kingdom, the U.S., and the European Union.  For an as yet to be determined two-year period, only they will have the opportunity to accede to ACTA, as well as any other WTO Members that the participants agree may join.  After this initial two-year period any member of the WTO may accede to ACTA simply by depositing a document noting the member’s approval of ACTA’s terms. (more…)

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