Protect Your Intellectual Property

Suppose you decide to do what I recently did and contact the managing partner of a consulting firm and propose that the two entities agree to explore the possibility of forming a business alliance that just might become very profitable? Business is all about deal-making and every once in a while a Solopreneur has to pitch a good proposal to the right prospect. After all, nothing ventured, nothing gained.

But there is risk involved, usually for the smaller entity. Solopreneurs typically offer intangible services, better known as intellectual property. We trade on our expertise and judgment, our brand and reputation, that which distinguishes us from the pack and allows us to make a living.

Engaging in a business alliance or joint venture usually involves the sharing of intellectual property by one or all of the parties (in this case, it would be me). How can you protect yourself from unscrupulous operators who might decide to appropriate your valuable IP as you’re out there trying to be proactive and proposing potential business deals to parties who might be interested?

Denver attorney Susan F. Fisher defines intellectual property or trade secrets as “any formula, method, or information that gives you a competitive advantage… anything that takes time, money or effort to develop and that you don’t want potential competitors to know about.”

Most business alliances, including licensing arrangements, require a Solopreneur or business owner to reveal trade secrets and other IP. Protecting the coin of your realm is a top priority. Surprisingly, trade secret protection can mostly be achieved by taking just a few simple steps that cost no money at all to enact.

Step one is to identify your intellectual property or trade secrets as restricted material and therefore not available for general distribution. Mark the material “Confidential” in big bold typescript. Step two is to require a special password to access the document file, to provide yet another level of security.

A third IP security measure is to unambiguously state in a letter, or in the email to which the file of IP information is attached, that the information within is proprietary and confidential and that it is being provided as part of a business proposition for which you would like to be paid, should the proposal come to fruition.

Instituting such safeguards not only protects IP, but if a dispute should lead to litigation, will also demonstrate to lawyers, judges and juries that you identified your IP as confidential and not intended for general distribution; that you made it known that the information you shared was sensitive; and that you intended and attempted to protect your IP.

The ultimate level of security is to require that the party with whom you share IP sign a nondisclosure agreement. The NDA provides formal legal protection for your IP and trade secrets. Furthermore, the NDA specifies which information is considered proprietary and which is not and also describes guidelines as to how the IP may be used and for how long the information must remain confidential. In the NDA, your attorney should request that all copies of confidential information that detail the ingredients of your “secret sauce” be returned to you at the end of that term.

So by all means, be an enterprising Solopreneur and pitch a good idea to the right decision-maker. Just be sure to start the venture off on the right foot by taking a couple of no-cost steps to protect your interests.

Basics of Typosquatting and URL Hijacking

Typosquatting (also referred to as URL hijacking or using a fake URL) is a form of cybersquatting in which an individual sets up a website that incorporates one of several typographical errors typically made when Internet users type a website address. Typosquatters most often take advantage of four common typographical mistakes:

1. A common misspelling or foreign language spelling;

2. A misspelling based on typing errors, such as leaving out a letter;

3. A slightly different phrase, such as adding an “s” onto a word; and

4. A different top-level domain, such as “.org” instead of “.com”.

Typosquatters then use those mistakes to their own advantage, often for personal gain. Some common uses of mistaken domain names include: trying to sell the domain name to the original brand owner; passing off the website as part of the branded entity; making money with pay-per-click revenues; redirecting to a competitor; and participating in malicious activities (intercepting passwords, installing malware, etc).

A 2011 study found that 80% of all mistyped domains led to websites that were somehow associated with malicious intent on the part of the typosquatter. The study, by Sophos, looked at six domain names: Facebook, Google, Twitter, Microsoft, Apple, and Sophos. The study then analyzed websites that incorporated three simple typographical mistakes: omitting one letter; mistyping one letter; and adding one-letter.

Based upon the study, Sophos found that the mistyped domain names that were used most frequently were associated with those companies that were high profile and had websites that were commonly viewed. The study found that the percentage of active domains with the most common mistyped domain names were as follows:

Apple 86%

Google 83%

Facebook 81%

Twitter 74%

Microsoft 61%

Sophos 16%

The study found that the highest proportion of mistyped domain names – 15% – led Internet users to advertising sites. Another 12% of the websites were related to IT and hosting websites. 2.7% of the websites were considered cybercrime, meaning that they were at some point associated with hacking, phishing, online fraud, or spamming. Another 2.4% of the websites had adult content or were dating sites.

Sophos also found that the company being imitated had an impact on the type of activity on the typosquatter website. Apple, for example, had a larger percentage of bait-and-switch attempts with iTunes. One company used a pair of domain names that appeared to offer iTunes software downloads but instead enticed consumers to pay $0.99 for “unlimited downloads” – in actuality, technical help forums regarding downloading audio and video files.

In contrast, Google was the most commonly abused brand, in which third parties provided search pages and presented sponsored links as part of the search results.

Companies are taking typosquatters seriously and are fighting back, both through administrative proceedings and the legal system. Some companies, such as Lego, use the Uniform Domain Name Dispute Resolution Policy (UDRP) proceedings to file cases with the World Intellectual Property Organization (WIPO) against typosquatters. In fact, by 2011, Lego had spent approximately $500,000 in various UDRP proceedings against 309 typosquatters.

Facebook, on the other hand, sought protection in the California court system. As a result of its lawsuit, in 2013, Facebook was awarded almost $2.8 million in damages against several typosquatters who had registered 105 domains, including gacebook.com, gfacebook.com, and faacebok.com. Additionally, the offenders had to turn over the domain names to Facebook.

Sometimes I Don’t Understand The Legal System

Sometimes the legal system needs to metaphorically hang its head in shame. It will make decisions based on some bizarre notion of political correctness instead of exercising plain common sense. Instead of upholding free speech, as you might expect in a healthy democracy, the system subjects it to a full-blooded, frontal assault.

A well-known British performing artist has been forced by a court to shelve plans for a book detailing his own childhood sexual abuse after (get this) his ex-wife was granted an injunction because their young son might read what he wrote.

Quite separate from the issue of the book banning, this case has already been the subject of some of the most intense and blanket suppression orders I have ever come across in 30 years of journalism. It makes a mockery of the notion of open British justice.

The performing artist can’t be named. The performance art that he is known for can’t be identified. His book publishers can’t be named. The ex-wife can’t be named or identified nor can their son. The exact age of their son can’t be released other than to say: “he is approaching teenage years.”

The ex-wife moved away from the United Kingdom after the couple, were divorced in 2009. But the country she moved to can’t be identified other than to describe it as a place called ” Ruritania.” Why they decided to call it that is anyone’s guess. Maybe the learned judges read too many Harry Potter books.

Seriously, this is Noddyland. The performing artist claimed he had a couple of compelling reasons for wanting to write the book. Firstly, to help him come to terms with a particularly dark and traumatic period in his life and secondly, to encourage other victims, who might have endured similar abuse, to come forward and tell their story.

In successfully applying for the temporary injunction, the man’s ex-wife relied on a legal case dating back to 1897. It involved a man who played a practical joke on an East London pub lady but was found guilty of the “intentional infliction of mental distress.”

In granting the injunction, the court said the performing artist’s book was semi-autobiographical. He was highly successful in his chosen career, despite a tormented childhood. He had endured sexual abuse at school over a number of years, which caused him to suffer physical effects as well as mental illness. He also got a thrill out of self-harm. But through his art he had discovered a means by which he could cope with the trauma of the past. In the manuscript, which the court read, the performing artist was described as having written with clarity and purpose offering some new perspectives on his life and career. But despite this, the court ruled no-one should be allowed to read it.

The court said while it accepted there was a public interest in the book being published, it decided to grant the injunction so that a trial could take place at a later time on the over-riding issue of whether the son’s rights should have precedence over the rights of the father.

The legal action was launched after a copy of the manuscript was leaked to the ex-wife. She said she was acting on behalf of their son who has Asperger’s syndrome, a form of autism, as well as Attention Deficit Disorder and a number of other health problems. She claimed that publication of the book would be a misuse of private information and what her husband was doing amounted to negligence. She also argued that both she, and her former husband, had agreed to a court order at the time of their divorce to prevent their son from learning about the past lives of both parents which could have a detrimental effect on the boy’s wellbeing.

However, the court rejected any suggestion of negligence on the husband’s part. It said parents could not be liable for damages that might arise from parental decisions, concerning the welfare of their children, that they must make everyday. Similarly the court rejected the ex-wife’s claim that the manuscript was a misuse of private information. The book was about the performing artist not his son.

But despite rejecting these legal arguments, the court still found it was necessary to grant a temporary injunction. Needless to say this case has sounded alarm bells for advocates of free speech. They claim it could establish a very dangerous precedent, which many book publishers say is deeply disturbing because it could undermine the rights of other authors.

A British group that lobbies to defend the rights of writers says the court’s decision sets a worrying precedent, paving the way for the injunction of memoirs of any work of non-fiction that may expose or investigate the past. The case allows an aggrieved party to cite the distress of a relative or friend as grounds for censorship.

Another group, Index on Censorship warned that this case represented yet more erosion of the boundaries of freedom of expression.

The performing artist says his right to free speech and the written word is particularly acute and should be respected because of what he went through. I, for one, wholeheartedly agree with him.