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To paraphrase Matt Groening, the creator of “The Simpsons,” trademark infringement is the sincerest form of flattery. However, flattery gives you no solace when your competitors are stealing your brand; making sales on your hard work and goodwill. There are steps you can take to help better ensure brand security. Gucci, Rolls-Royce, even McDonald’s — the brand embodies a company’s goodwill associated with its product or company. The legal instrument for protecting a company’s brand is the trademark. Trademark rights protect the words that identify the source of that product or service. Once you have obtained trademark rights, the subject of another article, you can enforce the trademark either in court or by registering your registered trademark with Customs (if your competitor is in fact importing the goods, a very common occurrence). Customs will stop the goods at the border once convinced a trademark infringement has occurred. However, short of, or even in addition to, these extreme and sometimes costly activities, it is possible to utilize tools to allow customers, distribution networks and society in general to quickly differentiate the cheap knock-off from your company’s real thing. The techniques that can be used vary with the types of goods. By way of example, there are ways of protecting digital goods — those found on the Internet, on CDs and DVDs — and ways for protecting those traditional goods that come in physical packages. Digital products, like dollar bills, may be watermarked to prevent counterfeiting. It’s now possible to digitally watermark electronic media. Digital watermarking is a way of embedding either a nearly invisible background, or machine-readable only message or code into the electronic information. Acting like an electronic fingerprint you, as the brand owner, can easily police for counterfeit products on your own, hopefully embarrassing consumers into buying legitimate goods or, where a brand is quite strong, allowing them to easily identify the original good with all of its associated cache. By reading the hidden watermark, consumers or Customs can tell the counterfeit product from the real product, driving down demand for the inferior counterfeit product. For Web-enabled products, “spiders” and “robots” that automatically police Web sites for counterfeit content have been developed. This technology dovetails well with the digital watermark in identifying counterfeits from the real thing. This type of technology lends itself to detecting and identifying the misuse of corporate brand names as well as the downloading of bootleg music and movies. There is an even greater array of technologies available for use in the nondigital world; those packaged products where branding is more prominent. These technologies span the gamut from visually detectable techniques that are readily discernible by the naked eye to sophisticated, machine-readable techniques. By way of example, a rapidly adapted technique is the use of holograms. Holograms, which have been around for decades, are structures that react in a predetermined way to light. Holographic labels when applied to the packaging of a good provide either a machine-readable or visually readable product authentication. The most common example is the adoption of holographic labels on credit cards as a quick, easy way to determine counterfeits. Three-dimensional holographic images have also been used on Microsoft’s CD-ROMs to determine counterfeit or copied software. A technology related to the hologram is color shifting. Many of the holographic labels rely on color shifting so that the appearance or color of the label changes in a known predetermined way depending upon the angle at which the label is viewed. Some of these labels, like those used by Microsoft, use color shifting and holographic technology so that the label changes from one word to the other as a verification, much like the toys we played with as kids in which a holographic eye would open or close depending upon the angle at which you viewed the picture. Although these technologies are sophisticated in their creation, they are simplistic in their use, making them an easily adapted mechanism to afford even small companies the same type of protection utilized by Fortune 100 companies. There are more expensive and sophisticated technologies that are also beginning to experience widespread adoption. One commonly used technology is radio frequency identification, or RFID. An electronic tag or transponder utilizes radio signals to wirelessly identify itself to a reader. Usually, RFID tags are hidden as they are embedded in the packaging away from view. This technology is common to anyone who has utilized SpeedPass key fobs to purchase gasoline. However, rather than having payment information, the RFID tag would include product-identifying information. Furthermore, RFID tags have enabled the tracking of products through distribution channels. Companies such as Wal-Mart are now insisting on RFID technology in their supply stream. This makes it possible not only to identify counterfeit goods but to track them to their source. Other machine-based tracking schemes include electromagnetic identification technology. Charged particles are incorporated into tags in a unique pattern that can be machine-read over large distances. The charged particles can be laminated, embedded or applied to the surface of packaging or the product itself. Micro tagging is a process by which minute particles are incorporated into the materials used to manufacture the products. Each micro tag particle contains a unique numeric code sequence within a chemical used in the manufacture of the products so that genuine products may be identified apart from counterfeits. In the 21st century, even biotechnology-based schemes are utilized to identify goods. Inks have been developed containing unique DNA fragments. Each manufacturer will be provided with a unique DNA code so that the ink of one manufacturer may be distinguished from the ink of another, much like the DNA of one individual may be distinguished from the DNA of another. The branding of products and corporate image is integral to increasing the value of a company. The more easily counterfeits are identified and removed from the market, the stronger the brand becomes as an identifier of the sole source of the goods or services. By utilizing some of these techniques, some of which are simple to implement and inexpensive to use, it is possible to protect your brand just like the big dogs. Howard M. Gitten is a counsel with the intellectual property practice of Edwards Angell Palmer & Dodge in Fort Lauderdale, Fla. He can be reached at: [email protected]

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