Today I'm posting an excerpt from a nonfiction ebook I co-authored with my former PI partner (now an attorney). This sample describes the work, background and mind-set of a PI who specializes in intellectual property investigations, including two real-life case examples from our private detective agency.
Intellectual Property Investigations
Intellectual property seems to be the buzz word of the day. It sounds ethereal, brainy, yet concrete -- like the stuff Albert Einstein might have kept in his garage. But what is it, really? The following facts comprise a legal definition of Intellectual property in the United States:
- It describes a wide variety of property created by musicians, authors, artists, scientists, business people and inventors.
- The federal law of intellectual property encompasses the areas of copyright, patent and trademark laws.
- Its principles are designed to encourage the development of art, science and information by granting property rights to creative and inventive people. These rights allow artists and inventors to protect themselves from infringement (which is the unauthorized use and misuse of their creations).
- Protection of intellectual property is not a recent thing. The U.S. Constitution authorizes congress to grant patents and copyrights, while the Commerce Clause authorizes congress to regulate trademarks and acts of unfair competition. The states also retain concurrent power to regulate intellectual property unless preempted by federal law.
The International Chamber of Commerce (ICC) defines intellectual property in the following statement:
Intellectual property is a product of the intellect which is owned by an individual or an organization who can then choose to share it freely or to control its use in certain ways. Intellectual property is found almost everywhere - in creative works like books, films, records, music, art and software and in everyday objects like cars, computers, drugs and varieties of plants, all of which have been developed thanks to advances in science and technology. The distinctive features which help us choose the products we buy, like brand names and designs, can fall within the scope of intellectual property. Even the place of origin of a product can have rights attached to it, as is the case with Champagne and Gorgonzola. Much of what we see and use on the Internet, be it a web page or a domain name, also includes or represents some form of intellectual property.
Some statistics claim counterfeit products account for approximately 8 percent of world trade, an incredible $200 billion dollars a year (some even bump up that figure to $600 billion). Sophisticated counterfeiting syndicates often include individuals who are connected with the brand owner.
An investigator specializing in this field might:
- Conduct undercover field activity to identify product counterfeiting operations and other unauthorized activities at the manufacturing, distribution and retail levels.
- Ascertain the ID, background and associations of violators as well as their sources/methods of operation.
- Assist intellectual property attorneys to guide their clients in transactions involving intellectual property acquisition, development, protection and enforcement.
- Consult on brand protection strategies.
- Gather intelligence in intellectual property litigation.
- Conduct due diligence on suppliers, distributors and third-party manufacturers.
- Perform market surveys and market monitoring.
- Analyze/quantify loss.
Intellectual Property Case 1: Trapping an eBay Counterfeiter
At our investigative agency, we participated in a nationwide sting on an eBay counterfeiter who was boldly re-selling a major pharmaceutical company’s products. We say boldly because this individual was actively and openly advertising the products on a website as well as on eBay. In a coordinated sting operation, different PIs in selected locales around the U.S. made undercover purchases of the counterfeited products over a short period. Afterward, each of us forwarded documentation of the purchases and any written documentation, including notarized affidavits of the same, to the law firm representing the pharmaceutical company. Although we haven’t followed the outcome of the legal hearings, we don’t see this individual hawking these counterfeit products anymore!
Intellectual Property Case 2: Documenting Franchise Infringement
A national law firm contacted our agency and asked us to document a local health club that had ceased paying the national franchise office for the use of its business concepts, symbols, designs and software and yet was continuing to use all of those items for their exclusive profit. After entering the health club, Colleen used surreptitious means (tiny cameras built into a clothes item to record items in the club) while Shaun undertook a trial workout.
While the club owner trained Shaun on the equipment, Colleen strolled around the public area of the club, recording possible infringements of the franchise-business logos, procedures, use of the same equipment and she was even able to record the manager’s computer that proudly displayed “protected corporate software” from the franchisor still in use by the rogue franchisee. Because we were on commercial property, upon which we were invited guests, all of our surreptitious documentation was legally obtained.
The result: the breakaway business renegotiated their arrangement with the franchisor, returned to the fold, and Shaun did not have a heart attack.
If you’re writing a story with a crime involving intellectual property, check out the following sites and publications:
- United States Department of Justice, Computer Crime & Intellectual Property Section
- The Electronic Frontier Foundation is a non-profit organization that champions the public interest in issues affecting digital rights. Review this with an eye on “the other side” of intellectual property transgressions.
- Knockoff Report is a publication by Rob Holmes, a private investigator who specializes in cybercrime and trademark infringements.
Writer’s Slant: If Your PI Specializes in Intellectual Property Investigations, Think About
- What kinds of strategies they would develop for entering businesses and documenting their activities. Posing as a pharmaceutical customer or a potential health club member creates interesting possibilities for someone who has little familiarity with such things in their “real life.”
- How your PI gains knowledge of complex formulas and “acts” like they know something about matters as diverse as counterfeit DVDs, toys, drug compounds or tour t-shirts for rock bands.
- How your fictional PI documents intellectual property infringement (for example, does he wear an “undercover buttonhole spy camera” or carry a backpack with a tiny camera and video recorder built into the satchel?).
- How your fictional PI will handle the danger and legal issues surrounding the fact that many counterfeiters also deal in “other” products such as narcotics or weapons while they produce and sell “benign” counterfeit items. In November 2007, federal agents in Los Angeles arrested twelve persons involved in clothes counterfeiting and also recovered thirty kilograms of cocaine, miscellaneous firearms and $123,000.00 in cash (the money had been stuffed into a teddy bear). This case involved a number of Arab co-defendants producing bell-bottom jeans, then investing the profits in exchange for cocaine and illegal firearms from the Mexican Mafia. The feds called this “Operation Bell-Bottom.” Talk about fodder for your story!
