IP DETECTION
Te degree to which this deception can escalate may be a concern for a prospective client. Tere have been incidents, such as Hewlett Packard’s (HP) use of private investigators, which have had ramifications for conducting an investigation under pretext. “Since HP used private investigators, pretext is a dirty word,” Bulla says. In 2006, private investigators, on behalf of HP, obtained phone records belonging to journalists and HP board members under a pretext. Criminal charges were brought against two HP employees and four private investigators, all of which were dropped, apart from one. Bryan Wagner, a private investigator, pleaded guilty to the charges levied at him.
Bulla sees the need to approach a target under pretext as a necessary evil, and certain legal bodies may agree with him. He says: “Te New York Bar Association has rendered an opinion that approaching a target under pretext is not forbidden in matters involving IP investigations, because it is seen as one of the best ways to obtain factual information.”
Acceptable pretexts
Since IP investigations appear to lean on this form
of deception, the onus is on the IP investigator to calm a prospective client’s fears about the lengths an investigator will go to when approaching a target. A way of doing this is to offer the prospective client a choice. Bulla says: “We do employ it, and I’m very clear to our clients. Te clients have the option to request that we don’t. Tat’s one of our standard questions—can we contact the trademark owner under pretext?”
Te answer to this question is oſten the same. Bulla says: “Some clients say no, most say yes.”
In order to maintain a professional reputation, and to stay out of court, it is important to assure the client that the IP investigator has the ability to conduct “legal and appropriate pretexts”. One way of doing this is setting boundaries for the types of information an investigator can seek to obtain under pretext. It is important to draw a line that they should not cross in any circumstances. Bulla says: “We do not ask for trade secret or proprietary information, and we don’t ask for banking or financial information—all the typical things people should not ask for.”
As well as certain types of information, certain identities that the investigator could take on are
completely out of bounds. Posing as a government official of any capacity is illegal in the US and other jurisdictions, but there are also other professions that are considered inappropriate to impersonate. “Some investigators will pose as priests or doctors,” says Bulla. “We won’t even do that. Our investigators, as a safety measure, are instructed not to pose as any profession that is regulated, ordained or somehow certified. So because a priest is ordained by some type of religious institution, and receives some type of certification, mark or licence to practice, we don’t pose as or take on that identity.”
Te identities that guarantee the legality and appropriateness of a pretext approach are those that confirm, for the target, how the information will be used or shared. Identities such as a consumer or a student are the most typically used, because they ensure the target knows that it is supplying information to a third party who may ultimately share it with someone else. Bulla says: “Tat way, the target knows that if they are giving that information to any of those persons, the information they are giving should not be privileged.”
To keep on top of IP infringement worldwide is a tall order for any brand owner, counsel or law
www.worldipreview.com
World Intellectual Property Review May/June 2010
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