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Businesses: carefully consider differences between state, federal trade secret protections

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

In previous posts, we've looked very briefly at trade secret protections available to businesses under both state and federal law. As we've noted, there are many similarities between federal and state trade secret protection law, but there are also some differences that business should be aware of when determining the best strategy to protect their trade secrets.  

The federal law, unlike the California trade secret law, does not require that a plaintiff identify the trade secrets in issue with "particularity" prior to commencing discovery. However, it is possible that some federal judges on their own may require such an identification take place at the outset to frame the issues and narrow discovery.

Another difference is that the federal Defend Trade Secrets Act allows plaintiffs to request a special order for the seizure of property early in the litigation that's "necessary to prevent the propagation or dissemination" of trade secrets. It isn't known yet how extensively this provision will be applied in trade secret cases, but it does provide the possibility of plaintiffs obtaining relief in cases where a defendant attempts to hide misappropriated trade secrets.

Businesses, of course, need to carefully consider the differences between state and federal trade secret protection laws when forming their own approach to trade secret protection and enforcement to ensure they adopt a sound strategy.  Working with an experienced lawyer helps ensure the rights of a business in this area are thoroughly protected. 

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