Information v. Intelligence — Providing Actionable Instructions to Trademark Investigators

Fish recently sponsored a Consero Group roundtable on Brand Protection & Anti-Counterfeiting attended by approximately 30 in-house brand enforcement professionals from leading companies. The discussion focused on unraveling the various foreign enforcement regimes and best practices for cost-effective solutions. We moderated a discussion on Investigation and Enforcement Strategies to Counter Evolving Threats to Your Brand and Product.

One topic of particular interest was a presentation by a representative of the Department of Homeland Security and an in-house brand professional who was previously in law enforcement. Their discussion concerned the differences between information and intelligence, and strategies for maximizing return on investigation and raid investments.

It is often the case that investigators return information characterized as "intelligence." From the speakers' point of view, however, the information returned is merely that: information. It does not become "intelligence" until it is analyzed by the client, who applies industry, market, brand, and strategic knowledge to the data. This may seem like a small difference, but as explained in the presentation, it matters. Too often in-house brand professionals rely on the investigator's information as the analysis and do not weigh what is useful and why it matters for purposes of the company's branding protection goals.

The speakers recommended developing a comprehensive "data checklist" comprised of the information the investigator should provide, e.g., the type and number of the goods. They also suggested collecting information targeted at the next potential infringing activity after a raid. For example, if there is a car present at a factory making counterfeit goods, it is likely the manager or owner. The investigator should record the make, model, and license plate. If a raid shuts down a factory, the car's owner may lead your investigator to replacement or other factories. Similarly, during a raid, instruct your agents to not merely seize the goods, but look for documentation relating to suppliers, purchase orders, and bank accounts. Indeed, a collaborative relationship with your agents can lead to true "intelligence" found in the dumpster outside the plant, or even garbage cans inside the factory. Information concerning bank accounts is of particular interest to investigators and may be the element that triggers federal action, particularly since counterfeit products are now often linked to money laundering schemes related to terrorist threats and, as such, receive the due attention of Homeland Security professionals.

In summary, a collaborative and thorough effort with your IP investigators will gather more information and, at best, true intelligence. For more information on Consero events, visit their website.