Cyber-Guarding Intellectual Property

Medical Device & Diagnostic Industry Magazine
MDDI Article Index

INTO THE INTERNET
Originally Published June 2000

Ani Grigorian

Now that the big scare with Y2K computer compliance issues has all but vanished, Suzan Onel, an attorney at McKenna & Cuneo LLP (Washington, DC) is raising an equally important, longer-lasting, computer-related issue—trademark and copyright infringement on the Internet. Onel—who practices food and drug law with an emphasis in medical devices, foods, and dietary supplements—says the problem is a thorny one. "The breadth, depth, and speed with which a company's intellectual property can be copied and disseminated in the Internet age is unparalleled," she says. "The Internet makes it possible to obtain, download, and distribute material on such a mass scale that existing rights under copyright and trademark laws have the potential to be marginalized."

Trademark and copyright laws will not enforce themselves, which compels companies to continually audit their Web sites. Onel states that, "An appropriate auditing schedule may range from weekly to quarterly. The frequency of audits depends on the extent of the company's intellectual property, the company's size and capabilities, the interactiveness of their Web site, and how often the site is updated and visited by others." Because intellectual property on Web sites is modified and updated so frequently, Onel recommends that companies establish standard operating procedures that establish a timetable for regular audits (see "Copyright and Trademark Compliance on the Web: Are Device Makers Vulnerable?" page 120).

The more interactive the site, the greater the risk of copyright and trademark infringement, according to Onel. "The most complicated in terms of intellectual property issues are those interactive sites that allow individuals to post material and have discussions on a company's Web site regardless of whether they have a formal relationship with the company." The problem, Onel says, is that visitors to a site that contains third-party material may automatically assume that the company is responsible for the information provided by interactive visitors. "As a result of the combination of third party—provided content and the lack of monitoring," says Onel, "the risk of liability is higher not only for trademark and copyright infringement, but also for defamation and breach of confidentiality."

Computer-based technologies that protect intellectual property have not been able to maintain copyright and trademark compliance. "There are some blocking software programs available that prevent users from downloading proprietary material on a Web site, but these do not prevent them from copying the material by hand," says Onel.

Furthermore, the growth and popularity of the Internet makes trademarks more vulnerable to dilution. Onel says, "Because the Internet is so large and amorphous, the possibility of someone intentionally or unintentionally using a mark is naturally going to be increased. This risk is futher multiplied when one considers bad actors and the burgeoning practice of cybersquatting."

Onel explains that opportunities in the field of auditing intellectual property on the Internet are rapidly expanding. Lawyers are spending more and more time handling Internet issues; Onel recommends that companies conduct their own audits or consult with outside services and seek legal counsel if concerns arise.

Existing laws are "adequate for today," Onel suggests, "but few if any of us have a crystal ball that tells us where the Internet, e-commerce, and so forth will evolve. The law, and its application in the global marketplace, will also have to evolve to be responsive to the changes in the Internet."

Ani Grigorian is assistant editor of MD&DI.

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