(Part Two in a Series)
If push comes to shove and you are forced to file suit to protect your intangible assets, be sure that you are Wearing a White Hat.*
No one thing determines whether you are wearing a black hat or a white hat. The color of your hat depends on the cumulative effect of your actions.
To increase the likelihood that you will be deemed a “White Hat,” remember what you learned in Sunday School as a child: do unto others as you would them do unto you. Then behave consistently with that advice.
If you are a White Hat, you will try not only to protect your business, but also to treat your employees fairly and ethically. You will not seek to eliminate competition per se, but will, instead seek to eliminate unfair competition. You will not overreach, but will, rather, pursue the Least Restrictive Means Possible. You will treat others the way you would want to be treated if you were in their shoes.
Consider how these principles apply in the following circumstances:
The law of trade secrets is somewhat uniform across the country, but the law of restrictive covenants varies dramatically from jurisdiction to jurisdiction. Seek the advice of experienced legal counsel in your jurisdiction. Your counsel can help you develop and implement a legal strategy that is appropriate for your circumstances. Retain the services of a competent security specialist to help you develop an appropriate plan for securing your information. Whatever you do, start now.
If you start looking for your white hat after an employee leaves with sensitive business information, you will be too late. The court will consider the cumulative effect of your actions, starting with what you do today.
* “Wearing a White Hat” refers to the phenomenon in old time Western movies where the “good guys” wore white hats and the “bad guys” wore black hats. When you “Wear a White Hat,” you encourage the court to rule in your favor and protect your intangible assets because you have behaved fairly and ethically.
I am, first of all, a husband and father. Rebecca and I have been married 23 years; we have four children ages 21, 19, 18, and 15. My family is my greatest joy in life. For 24 years, I have practiced business law in Arizona, the past eleven as the managing partner of Gibson Ferrin, PLC. We help businesses and their owners meet their business and personal goals. My practice focuses on the intersection between intellectual property law and employment law. I help businesses prosper by properly managing their intangible assets.
I am licensed to practice law in Arizona only. Though I believe the advice in BiziBoom™ is based on sound legal principles, the law of your jurisdiction may be different. The advice given on BiziBoom™ is informational only; it may not be applicable to your specific situation. You should seek the advice of competent counsel in your jurisdiction, someone who knows the particular legal requirements of your jurisdiction. Until you have signed an engagement letter with Gibson Ferrin, PLC, neither the Firm nor I are acting as your legal counsel. Nothing on BiziBoom™ creates an attorney/client relationship between you and the Firm.