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Attribution … why it matters.

This week there has been lots of press on the Apple Samsung case, particularly in the Bay Area. The discussion is not limited to SV insiders, because the case deals with issues many of us have confronted in our professional lives: how to deal with a company or person taking ideas without paying for them or attributing them to their rightful owner. As the jury deliberates, they will struggle with complex questions simply put: who took what from whom, or at all.

As lawyers, we are supposed to be really good at making sure we follow the law — we do not take another entity’s intellectual property or copyrights. Having worked for many years and still consulting for a major information technology and publishing entity that owns a great deal of intellectual property, I understand the lines we must draw to protect our businesses, technologies and protected ideas, including patents and marked services or products. Working for two decades in the entertainment world, I have also vigilantly protected the IP rights of major production companies that allow our products to be featured on their productions.

I have experienced this sense of loss when something we create is picked up without attribution or payment or permission. A number of years ago, work I was involved with was “infringed” by one very large lawyer-related organization. This entity used both a name and trade dress that was very similar to something my team and I had created. When I showed this to my ceo he said “take it as a compliment, its flattering.” I wanted to send a cease and desist. He said no. Later the issue came full circle when I tried to hire a freelance writer who also wrote for the “infringing” entity. The writer apologetically declined because as he said “the management [of the other organization] doesn’t want me to write for you because it might be confusing since our publication names are so similar.” Exactly. But so wrong.

Now, as any of you IP lawyers know that is a sweet admission: the recognition that the names were so similar as to be confusing was good evidence for infringement. We all know that confusion in the marketplace is a critical factor in infringement. Although perhaps not evidence of actual confusion, this admission by management at the lawyer organization was enough for me to go back to my ceo suggesting a cease and desist letter. He said no again. I was frustrated, because I thought wrong is wrong and should be righted. But my ceo did not want to engage in this fight, it wasn’t our core business that was being trampled and it did not represent revenue, but it did represent significant marketing dollars. At the time, I was not able to say something or do what I thought was right … at least let them know we were aware of what they were doing.

But now I am saying something. Because as we see the apparent demise of business ethics, it is these “small” infringements that ultimately become big challenges to revenue. Remember what mom taught: sharing is fine, but taking is not fine.