Intellectual Property

Intellectual Property

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Intellectual property has the power to define a company and its reputation, products, and services. Fox Swibel’s Intellectual Property Group takes pride in protecting and maximizing the value of its client’s IP, because we know a company’s intellectual and emotional attributes are essential to making their business thrive. Composed of corporate and litigation attorneys, the group assist clients with more than just copyrights, patents, and trademarks. Our team has extensive experience in the following areas:

Advertising and Marketing
We take a proactive approach, helping clients develop successful advertising and marketing campaigns, while minimizing potential risks. For both new and traditional media, our team reviews advertisements, websites, social media, promotional material, and marketing practices to ensure compliance with both state and federal regulations, including the Federal Trade Commission (FTC). We make sure claims made in advertising are properly substantiated and counsel clients about allowable comparative advertising.

Whether a client is running a contest or a sweepstakes, we can assist in the planning, designing, and execution of the promotion. This assistance includes drafting and reviewing the official contest rules to comply with FTC guidelines and applicable state laws, including privacy policies and confidentiality requirements. In necessary states, we can also assist in the required registration and bonding.

We also assist our clients, when necessary, in defending their advertising and marketing or in seeking to modify a competitor’s advertising and marketing materials through litigation.

Copyrights and Rights of Publicity
We assist in all aspects of copyright registration, licensing, and enforcement.  Whether the work is computer software, multimedia, an audiovisual work, a painting, a novel, or a musical work, we assist in documenting and protecting ownership of the work.  Our team ensures the appropriate agreements are in place for “works made for hire” or for copyrights acquired from third parties.  We counsel our clients on the scope of copyright protection, including the permitted uses of others’ copyrighted materials.

When disputes arise, we analyze and counsel our clients on the various defenses to claims of copyright infringement, including the fair use defense.  Where necessary, we enforce our clients’ rights through litigation, including the seeking of injunctive relief.

Due Diligence
We review agreements to identify any potential issues that may affect our clients’ ability to acquire sufficient rights to use the desired intellectual property in their business.  This includes review of independent contractor agreements, non-disclosure agreements, exclusivity agreements, license agreements, joint-venture agreements, assignment agreements, and distribution agreements.  Our team also reviews ongoing intellectual property litigation or other proceedings at the Patent and Trademark Office to fully vet any intellectual property our clients may have an interest in.
IP Litigation
Our team has litigated patent, copyright, trademark, and trade secret suits around the country in a broad range of industries, including banking, computer software, e-commerce and other internet services, educational services, automotive equipment, food manufacturing, and consumer electronics.  We have highly experienced litigators, proud to be called trial attorneys, actually willing to try cases where needed.  However, we also understand our clients’ business interests in carefully-timed litigation settlements.

Our team is experienced in handling all types of litigation: judge or jury trial, state or federal, district court or appeal, competitor or patent assertion entity, and arbitration or mediation.  We are also experienced in handling post-grant patent proceedings before the United States Patent and Trademark Office.  After a careful case assessment of the strengths and weaknesses of key issues, we design and execute a litigation strategy to meet our clients’ business goals, while staying within an aggressive budget.

We provide a broad range of patent counseling and litigation services.  We assist our clients by providing guidance in the development of new and existing products and in determining what features, if any, may be patentable.  We negotiate and draft development and licensing agreements.  We assess competitors’ patent portfolios to identify potential areas of concern and develop non-infringement, invalidity, design-around, or other defenses.

Our team defends our clients against claims of patent infringement, whether by competitors or patent assertion entities.  We have successfully defended our clients through early motion practice, summary judgment, trial, appeal, and through invalidation of the asserted patents at the Patent Office.  We also assist our clients in maximizing the value of their patent portfolios through licensing or various enforcement strategies, including litigation where necessary.

Trade Secrets and Confidentiality
Advances in technology have made it harder than even to prevent the unauthorized dissemination of a company’s information.  Our team assists in identifying and protecting our clients’ trade secrets (whether computer source code or a manufacturing process) and confidential information (whether a customer list or financial information).  We advise clients on whether to protect proprietary information through trade secret or patent law.  We have handled numerous trade secret cases including employee defection, manufacturers’ development of knock of products, employee hiring, confidentiality agreements, license agreements, and joint-venture agreements.

We assist our clients in establishing trade secret protection programs, audit and correct holes in existing protection programs, conduct trade secret exit interviews, and prepare and review confidentiality, non-disclosure, and non-compete agreements.  We counsel our clients in minimizing risks when developing a product similar to a competitor’s, conducting cleanroom development, or hiring a competitor’s employees.

Finally, when a company’s trade secret or confidential information has been misappropriated, we work swiftly and aggressively to stop any further spread or use of the information, including, where appropriate, seeking a preliminary injunction or a temporary restraining order.

Trademarks and Trade Dress
Of all of a company’s assets, its trademarks and trade dress are often some of its most important assets as they are how the company connects with its customers.  Our team assists our clients in obtaining, maintaining, and protecting their trademarks and trade dress.  We counsel our clients when selecting new marks, conducting clearance searches to determine availability and protectability.  We perform due diligence and can audit our client’s trademark portfolio.  We negotiate, draft, and review trademark license agreements, assignment agreements, and co-existence agreements.

We also assist our clients in monitoring and forcefully preventing infringement of their trademarks in the marketplace to stop infringement before it becomes a larger issue.  When necessary, we will enforce our clients’ rights through litigation, including seeking swift injunctive relief.

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