IP Consulting: Asymmetrical Warfare

IP Consulting, Asymmetrical Warefare, Continental Enterprises

Question: A company is stealing our ideas. But they are hiding behind foreign laws and convoluted ownership. What can we do to stop them?

When facing a seemingly intractable problem, the ability to focus your resources on the weak points of your adversary is essential to success. In the context of armed conflict, asymmetrical warfare has been a means of achieving both noble and nefarious ends. The strategic concepts behind Asymmetrical Warfare can also be deployed to great effect in the context of intellectual property ("IP") protection. Continental Enterprises ("Continental") has developed a unique approach to dealing with counterfeiters and infringers who do not avail themselves to traditional enforcement processes, which we refer to as Asymmetrical Warfare.

In order to protect your IP, it is essential to overcome the efforts of infringers to frustrate and circumvent the civil process and avoid prosecution. Continental turns the tables on counterfeiters and infringers by confronting them in unconventional and unexpected ways. These are just some of the tactics that infringers use to avoid being held responsible for their actions:

  • Hiding behind foreign laws and domiciles to avoid U.S. regulations.
  • Keeping fraudulent books and avoiding making their records available, which prevents equitable asset recovery in the civil process.
  • Setting up businesses in states where the criminal and civil statutes are lax or non-existent.
  • Refusing to respond to civil processes.
  • Concealing the true ownership of their businesses or transferring ownership to avoid civil remedies and become judgment-proof.
  • Circumventing hands-on involvement in legal transactions thereby avoiding any connections with the counterfeiting.
  • Attempting to dodge liability through silence and unresponsiveness.

In response to these tactics, Continental has developed unconventional approaches to get the job done. Our attorneys promote the creative use of state civil statutes like the Indiana Crime Victims Act, which provides enhanced civil penalties for various crimes against property regardless of whether the root crime has been prosecuted. We assist state and local police agencies in enforcing state criminal statutes (i.e. forgery), as opposed to relying solely on federal law enforcement. This is because local law enforcement is much more efficient and often more concerned with IP-related crimes.

We examine the various enforcement strategies and remedies in areas in which the infringer is operating.

We use state trademark registrations if federal registrations are still in process. We devise novel theories for IP protection to overcome the shortcomings of traditional enforcement analyses. We take action against all parties in the distribution chain from manufacturers to individual retailers. We investigate and document all potential crimes that are associated with the counterfeiting and provide our evidence to local prosecutors.

Despite Asymmetrical Warfare's militaristic foundations, the idea that unconventional strategies and tactics can bring about a desired outcome more quickly and at less cost is also very applicable to IP protection. Our experience has proven that counterfeiters and infringers will go to great lengths to subvert traditional methods of IP protection. As a result, it is necessary to devise and implement your own non-traditional approach to protecting your IP. Continental's theories of Asymmetrical Warfare can be the basis for achieving success. Ultimately, our goal is to insure that your IP is protected by making it the infringer's best business decision to stay away from your IP.