Protection of Information and Intellectual Property – Prevention in Times of Crisis

Recent changes on employment market, triggered off by present economic situation, has resulted among others in the decrease of the level of employment. Reductions in employment level concern employees of all grades and positions, including employees, who have access to data under special protection.  As the latest analysis concerning security of intellectual property in enterprises show, economic recession and reductions in employment level, which are linked to recession, might result in unauthorized disclosure of the data under special protection. The termination of employment contract is a conducive factor in terms of disclosing protected data by a former employee, taking into account the possibility to strengthen employment situation of such an employee and possibility to enter into cooperation with a company competitive with respect to his former employer. This kind of acts, not acceptable from the point of view of the rules of professional ethics, might be a source of harsh financial consequences for companies, which make reductions in order to counteract adverse occurrences on the financial markets. These risks, even though proven to exist, are not impossible to be minimized or even to be avoided, if proper legal mechanisms are applied.

In terms of opposing to potential risks of stealing intellectual property, preliminary considerations should focus on undertaking specific protective measures, like for example:

• protective audit of personal data with a focus on assessment of meeting criteria for making processing and storage of these data lawful, under both EC and national rules, as well as international standards; application of proper procedures might allow the company to limit the risk of disclosure of sensitive data as well as to avoid  legal consequences for breach of the relevant provisions of law;
• optimizing the rules on access to data under protection and the regulations on circulation of these data within the organizational structure of the company (especially the rules on the use of data processed in computer systems, on the usage of global means of communication during the process of rendering services, connected with access to restricted data, etc.); clear rules pertaining to circulation of data in any company facilitate supervision over their flow, and expose potential risks – these enable to apply proper mechanisms minimizing negative consequences of the said circulation ;
• introducing additional terms to employment contracts or other types of contracts for performance of work with an aim to make use of the legal mechanisms included in these terms in case of unauthorized disclosure of protected data; suggested terms concern i.a. properly drafted clauses on ban of competitive employment after termination of the employment contract with respect to the employee who has access to intellectual property of the company under protection
• organizing courses on protection of data and suitable practices in protection of data for employees and executive directors.

The increased level of risk of stealing intellectual property affects especially companies who render international and national outsourcing services.  In recent years, due to costs-saving approach, many significant companies have decided to situate some of their departments in the region of Central and Eastern Europe, including Poland. In connection with corporate structure of entities ordering specific services, it might happen that persons employed in national branch offices could gain access to intellectual property under protection of considerable value.  That requires special care as regards standards of protection. In the times of crisis, the issue of minimizing the risks associated with stealing intellectual property should constitute the determinant factor of effective management of bases. Undertaking the proper activities in the sphere of protection of data under consideration, as well as preparation and bringing into effect certain standards of management and circulation of data  in the structure of outsourcing company, might be a vital factor influencing the decision as to the choice of this company as the company rendering services connected with processing and usage of protected data. Therefore, proper legal mechanisms allowing for creation of the safe employment environment and maintenance of the minimal risk associated with potential unauthorized disclosure of somebody else’s intellectual property are tend to become more  and more decisive factor in the issue under consideration.

Zombie Computers

Functioning of Zombie computers in a company’s network constitutes a critical problem, which may cause serious consequences for the functioning of internal structures of data exchange as well as for external image of an attacked company. Sending spam by company’s internet accounts may cause their blocking by anti-spam software and significant difficulties in delivering mail. A serious threat is also a possibility of using infected computers by operator for the purpose of committing an illicit act, which may result in intervention of prosecution organs and securing systems for evidence purposes.

The botnet operators’ activity and perpetrators of computers take-over constitutes a prohibited act prosecuted also in Poland on the basis of polish Penal Code. For example pursuant to the wording of the article 269a of the Polish Penal Code anyone, who not being authorised, in a significant manner disrupts functioning of computer system IT network by transmission, destruction, removal, damage or alteration of an electronic data shall be a subject to the penalty of imprisonment for a term of between 3 months up to 5 years. The circumstance that the act was committed by use of company’s computers shall not in such a case result in employee’s criminal liability, if an intervention occurred without their participation and awareness.

The criminal liability of perpetrators does not expire the category of possible consequences concerning an attack on the company’s network by using a botnet mechanism. The current level of development of IT technology allows a proper securing of company’s network and reducing a risk of hackers’ attacks. In the case of not applying a basic rules of safety, the matter of liability of persons responsible in the company for committing a negligence which allows an attack should be considered. In the case of claiming a compensation from a perpetrator of a damage an improper level of security may influence also diminishment of the potential amount of claims arising from a damage as a result of contributing an injured to damage. Insufficient level of security may be a potential source of risk because of claims of entities whose IT systems were subject to an attack of company’s taken-over computers which were not secured against such a situation by installing a proper software and carrying out regular controls.

Using of Literal and Graphic-Literal Trademarks in The Light of Sale Transactions by Internet

The article below is meant to explain the essential legal consequences of using literal and graphic-literal trademarks by entities running business on spare parts sales transaction, without proper authorization from the owner of trademarks.The issue of using trademarks is subject to the Industrial Property Law Act of June 30, 2000 (IPL Act) as well as the unfair competition Act of April 16, 1993 (UC Act).

Without a consent of the entitled (pursuant to article 153 s. 1 IPL Act it is an entity authorized to exclusive right to use trademarks in a business or professional activity) or in circumstances directly set forth within IPL Act, the other entities are not allowed to use trademarks.

The business operator who uses trademarks on a webpage – unauthorized – evidently to anyone visiting such webpage, especially clients acquiring spare parts of goods well-known producers (e.g. cars, electric household appliance), inevitably benefits from reputation of such trademarks. This entity beside gaining profits also misleads consumers as to the origin of the goods.

Pursuant to the article 156 s. 1 ss.3 of the IPL Act the authorized entity is not allowed to ban the use of trademarks to third entities within trade relations as long as such a use is necessary to show the purpose of the goods which is helpful especially in case of spare parts, accessories and other related services. However, within the article 156 s.2 the legislator prescribes that such a use of trademarks is allowed only when such satisfies the right needs of users and purchasers of the goods and when it complies with good practice in a trade or service relation.

As a result from the abovementioned the use of trademarks remains justified as long as being for the information purpose, i.e. in place when the use of particular model of spare parts is subject to an explanation. The problem is with the limits of such a use being crossed when use of trademarks is not for description of the goods’ purpose but for recognition of a whole webpage of the seller (mostly on the top of the page). It can be claimed then such a use is meant to draw attention of the client which is unlawful because allows to make additional profits as well as misleads client as to the quality of the goods being guaranteed be the producer as the trademark owner. The truth is however that the seller is not authorized to use the mark of the well-known producer, not even business related.

Apart from that in such situation trademarks are also used within an internet domain address which is another form of infringement and results in the same – unjustified profits and misleading client practices.

The use of literal and graphic-literal trademark in a webpage or within an internet domain give rise to liability under unfair competition Act regulation, especially under article 10 of the Act – misleading as to the profile of the business entity or the origin of the goods – the same with spare parts being marked without authorization.

Possible claims against an infringing entity:

1. claim to cease using literal or graphic-literal trade marks in a form of an internet domain, on webpage or any other forms of use within business activity exceeding the use for information purpose that the spare parts are suitable for the particular products;
2. claim to attach the goods (spare parts) with particular information clearing out that the seller is not business related with producer empowered to those trademarks;
3. claim for entity to leave the registry of internet domain comprising the literal trademarks;
4. claim to cease practices of misleading clients as to the profile of the business entity or the origin of the goods.

Merchandising In Sports Area – Practical And Legal Issues

According to the American Marketing Association the term merchandising is to be understood as the planning involved in marketing the right merchandise (product) or service at the right place, at the right time, in the right quantities, and at the right price. In the light of polish understanding merchandising is used to described marketing activity concentrated on benefiting from trade marks, presentations, images or symbols associated by clients with one product in order to improve sale results of the other product, addressed to the wide range of consumers and offered mainly in retail.

It is commonly known and benefited from as the merchandising can be a convenient instrument to foster such products like sports events (so called merchandising event) or a football, bascetball or hockey teams etc. It is enough to say as from several to several dozen percent of German or British football clubs’ revenue come from merchandising. Similar event can be found in case the american baseball, bascetball or hockey clubs, no matter professional or amatour. The merchandising opportunities are wide and various, depending on how large and strong is the relevant product to be supported by such an instrument as well as what is its potential of development.

One thing is sure that in effect any entity operating within actual sports surrounding is forced to use merchandising somehow in day-to-day activity to develop in a righ way.
Emotiones of sports, esspecially some of its disciplines, casue the sports funs ones of the most faithfull and devoted clients of a particular brand they root for.

The shops of those the most enterprising sports clubs offer almost everything – from the crowlers for the baby funs whose parents wish them to hereditate the love for the particular team, through cups, keychains, calendars and copy-books, bedclothes, wall-paper and all sorts of clothes and accessories for men and women, to the brands of food products in the end.

Another words, as American experts in sports merchandising used to day – the sky is the limit. The same happens with sports events – no matter we are talking about Ground Slam tennis tournament or domestic athletics meeting or interscholar competitions, each time there is a place for merchandise and gadgets distribution which bring not only financial profit but becomes effective instrument to promote the event.

Together with the awareness of profits from using the merchandising the reflection must come on how to get rights do use the merchandise reserved effectively and saved from infringement or at least have those infringements minimised. As it was pointed out above merchandising relays mainly on using trade marks, symbols etc. being associated and referred to particular merchandise, which in case of sports category means sports clubs, teams or sports events. The key question for sports club owners, sports competition managers or any other entities wishing to benefit from merchandising in any other way, occurs to be suitable registration of trade marks referring to their business activity as well as taking all available measures to execute their rights. Main legal act that abovementioned actions (on intellectual property) will be based on is the Act of June 30th, 2000 on industrial property, however depending on the actual case, other legal act may also be relevant, e.g. the Act of April 16th 1993 on fighting unfair competition.

The football club that should be seen as an example to others polish players on the merchandising market is called Lech Poznań. It has guarantied himself relevant rights with the benefit to its image and for its funs and continues to develop its merchandising offer, co-operating with relevant authorities and business partners in the scope of monitoring the actual infringements on the market. Taking examples from such an entity is not against the fair-play rules but it pose a good practice as an correct element of sport development, an unusual discipline of life and economy on the domestic market. The real Olympic games in sports’ merchandising are about to come on EURO 2012 being organised by Poland – lets wish we manage to learn how to use that instrument the best.