My last post published on February 10th titled, “Does the IP Industry Reach Out to Federal Law Enforcement Enough?” was a synopsis of an article written by retired FBI Supervisory Special Agent Michael LeMieux published in the Brand Protection Professional titled, “Are You Getting Your Money’s Worth?”
About a week ago I exchanged a few emails with Michael LeMieux on this topic and he was generous enough to elaborate on the points made in his article.
Here is a synopsis of our email exchange, including a comment made on my blog post site by the former director of the National Intellectual Property Rights Center (IPR Center) Bruce Foucart.
- “This is an interesting area. As my article notes, fed LE is aligned with that private/public partnership model and brands should seize on that every chance they get
- “When you consider some of the more esoteric issues that FBI and HSI handle, how could rights owners not gain something from that relationship, whether their cases are being taken up for prosecution or not?
- “Think of the model long used by neighborhood watch
- “But in the end, rights holders can be attracted to criminal enforcement and that becomes the goal for them that is often very elusive.
- “So if criminal enforcement is not presented as an option, they may look elsewhere and lose some of what could have been gained from that interaction with law enforcement. ”
- “I see exactly what you’re getting at. It’s apparently difficult for brands to get their heads wrapped around this new accessibility to federal law enforcement
- “Somehow this is not being communicated enough
- “And yet everything I’ve read and watched on YouTube (since I started to focus on this issue) has served to re-enforce this new model
- “I’ve watched numerous videos of IP conferences going back to the former IPEC Victoria Espinel and Eric Holder (2009) and various deputy attorney generals that repeated over and over again LE’s need to collaborate with the private sector to get the job done…yet…apparently, brands are still not getting that message.
- “Even the things I pulled from various public DOJ documents (that I put in my October 2016 blog post “U.S. Government Resources Dedicated to the Investigation and Prosecution of IP Crime) only re-enforces this “new model” in writing, and still, it’s not getting through
- “Just now reflecting again on the big consumer products counterfeit case we had last year and how we hesitated to reach out to the Bureau or the IPR Center
- “We felt we had to put a complete case together before we made the approach
- “A lost opportunity I think
- “Frankly, our overall reaction was based on that old thinking model: all-or-nothing, which essentially went like this, “If the Bureau (i.e., federal law enforcement) gets involved they’ll either take it or not, but they won’t support us
- “If I understand this new model correctly, a potential current IP investigative scenario could go something like this: private sector (counsel or investigators) runs by the Bureau or IPR Center what they have
- “Federal law enforcement will provide support, and if it reaches the threshold in which the feds take a case for investigation and potential prosecution, fine, but, if not, all that support will help in either a lesser criminal case (maybe at the State level) or civil case in federal court”
- “Great points. If I’m a brand, I seek the guidance even before I have a case
- “I recall talking to an emerging appliance brand that realized they had a growing CF problem. We talked about some ideas for interacting with e-commerce and also recommended the brand connect with other brands with a similar crime
- “Combine forces where possible so they are speaking with a louder voice and also make sure they join forces with other brands against their shared enemies
- I can’t tell you how many times we’ve seen brands take on their own expensive enforcement efforts, yet their neighbor is out there doing the same thing. Combine those efforts whenever possible.
- “One positive example of joining efforts against common counterfeit enemies is the auto industry’s Automotive Anti-Counterfeiting Council (A2C2), where the brands have joined in some common goals against product counterfeiting. Even though there are many challenges for participants, it is still a great model.
- Great article…the IPR Center also has specific helpful documentation for brand holders as to what referral information they need and will best help them (law enforcement) put a criminal case or enforcement action together going forward. Local field personnel will have similar information if you ask them.
- “There is a place and time for criminal enforcement but if that becomes the sole point of interaction between a brand and law enforcement they stand to lose out on an exchange of expertise that, quite frankly, may solve more of the problem in the end.”
Bruce Foucart was the Director of the National Intellectual Property Rights Center (IPR Center) from April 2015 until January 2017, and is currently the President of Foucart & Associates, an IP private investigations and consulting firm headquartered in Boston, and a fellow at the Michigan State University, Center for Anti-Counterfeiting and Product Protection (A-CAPP)
Michael J. LeMieux is a former FBI supervisory special agent and program manager for the FBI at the IPR Center and is currently a consultant with Foucart & Associates, and also a fellow at the Michigan State University, Center for Anti-Counterfeiting and Product Protection (A-CAPP)