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Epic Games and Fortnite are in the intellectual property news again

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.

On Oct. 25, Epic Games sued a former employer for misappropriating a trade secret and breaching a nondisclosure agreement when he allegedly publicized information about a new season of the game before its Oct. 15 release, according to WRAL TechWire.

The defendant’s actions allegedly cut into Epic’s profits – which have reportedly been substantial for the Fortnite enterprise – and deflated public anticipation for the release, lessening “excitement and enthusiasm” of potential purchasers and “spoiling the enjoyment of many of Fortnite’s players and fans,” reported TechWire, quoting the complaint.

The plaintiff filed its lawsuit in federal court in North Carolina against the former “User Experience tester” for Epic.

We have written before about the use of nondisclosure agreements as a means of erecting legal walls around trade secrets. Also called confidentiality agreements, an NDA is a contract between a business trade-secret owner and an employee, contractor, vendor, supplier or other entity with access to the secrets in the course of the employment or business relationship. The NDA requires that a condition of that relationship will be that the other party may not disclose the secret information.

Trade secrets are things integral to a company’s current or future economic success and can be recipes, formulas, methods, processes, client lists, designs and other kinds of information that need to be kept from public disclosure to protect the business. Think the recipe for Coca-Cola. There is no registry for trade secrets (like there is for trademarks or copyrights) but they are so valuable that their owners must withhold them from competitors. This leaves the onus on the owner-business to protect them through a variety of means like NDAs, physical isolation or technological firewalls.

We will keep an eye on this lawsuit and report back.


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