As a lifelong New England Patriots fan, it was difficult for me to have read about Deflategate, with the allegations about underinflated footballs, or Spygate, about alleged espionage on the football field. And what about those claims that the Houston Astros have been stealing signs at baseball games through illegal methods? But a whole different type of theft and espionage is fueling locker room talk. I mean, literally locker room talk, and the New Orleans Saints.
First, let me be clear: the Saints are not being accused of any wrongdoing.
This is essentially a scrimmage between firms that do locker room design.
Apparently, the Saints dropped the ball on one of the designers, in favor of a fierce competitor that was determined to “crush” the plaintiff, a company called Longhorn. Longhorn claims to have prepared extensive plans, including drawings and photographs, used in association with lockers and locker room design. They ended up in the hands of a competitive vendor who under-bid them, and got the job. Longhorn cried “foul.”
Locker Seat Assembly utility patent
Photo credit: United States Patent and Trademark Office
Locker With Folding Seatback design patent
Photo credit: U.S. Patent and Trademark Office
A lawsuit was filed in Texas, with a state court judge officiating. While that case was in progress, upon further review, the plaintiff determined that some of its copyrighted photographs, its proprietary designs, and some of their patented designs were being used. A second lawsuit was just filed, this time in a Dallas federal courthouse.
In this now second case, the issue is not so much about the amount of information disclosed, but the fact that copyrighted photographs (and locker designs) were used, as well as patented designs and locker features (like a special lid), all of which were owned or controlled by the plaintiff. Under claims like these, it does not even really matter whether the use was knowingly deceptive or not. The copyright owner has the right to control use of its property. The owner of a patent has the right to prevent others from making, using, selling, or offering for sale some design in which they hold the legal right. With claims like this, Longhorn largely sidesteps the entire question of whether there was any deceptive intent.
This approach can make the “theft” of secrets become peripheral. The beauty of intellectual property rights is that in many or even most instances, the question of intent is not important. The cases tend to revolve around whether the rights that were used were similar enough to the protected rights (or whether in the case of trademarks, consumers are confused). In a case like this, from the copyright standpoint, using identical images takes away the question of whether it is “similar enough.” For the patent claims, the court still needs to find whether the copier’s design is so similar that it equals infringement, and then needs to decide whether the patent actually is valid.
A company of any size may become privy to confidential information. Any nondisclosure or confidentiality agreement under which you are working can create rights, and impermissible disclosure is a breach of contract. A legal dispute over these rights means you need to prove the information was, in fact, confidential, and that the other party did use the information improperly. When the confidential information is also protected by a copyright or patent, some of these questions become irrelevant.
Few of us are professionals in a business related to sports. But it does not matter if your business is bigger than the National Football League, or as small as a solo consultancy. Everyone should note three things: (1) those nondisclosure agreements you sign really do mean something; (2) those legends that you see on things like drawings about copyright or patent ownership can be the quickest ticket to trouble; and (3) whenever you receive content, and I mean any kind of content, from some third party – text, photos, music, video, whatever – make sure not only that you have the right to use it, but that the party supplying it to use has the rights to permit your use. You do not want to end up in a courtroom, where you may expose yourself to some unnecessary roughness.