While formulating intellectual property strategy involves important factors such as background, timing, action choices and arrangements, in practice the author repeatedly experiences the significant influence of deep communication on developing and implementing such strategies.
Deep communication primarily refers to communication between the decision-making level of management and implementation departments responsible for legal affairs and intellectual property.
If decision makers lack understanding of details – relying solely on personal business experience and macro-level perceptions to guide or even determine specific strategies – achieving the desired outcome may prove elusive.
Similarly, if the implementation departments, such as legal affairs and intellectual property, fail to consider the business perspective and instead push forward strategy proposals solely from a professional and standardised standpoint, the result may also be counterproductive.
A consistent understanding of objectives is crucial for effective internal communication within a company. However, inadequate communication often leads to inconsistencies in goals among management, operations and the legal department.
For instance, when facing conflicts with other rights holders, should the company choose a cost-effective method to minimise the impact on its business, or take an aggressive approach to suppress potential claims of the counterparty, or adjust strategies based on the counterparty’s feedback?
While all these options aim to protect the company’s interests, internal differences of opinion regarding specific goals are common. Additionally, when dealing with infringement, should the rights holder choose to maintain and grow brand and market share through specific actions that fit the overall strategy, or adopt a zero-tolerance approach and actively counterattack?
On this, different considerations arise within the company. While there are no absolute judgements on the effectiveness of various intellectual property strategies in different circumstances – considering potential differences in specific objectives among different departments and levels within the company – it is necessary to align objectives before developing strategies.
Those providing intellectual property services, including the author, also need to deeply understand and appreciate the company’s true objectives, and the strengths and weaknesses of its resources, in confrontations.
While the overarching goal of the company is to defend rights, blindly applying standardised action templates based on past experience may place it at a severe disadvantage when facing a strong opponent.
Therefore, understanding the company’s current objectives through communication, analysing its situation and challenges based on available resources, and discussing the feasibility, success likelihood and contingency plans of specific strategies are essential for crafting tailored and appropriate solutions.
- Adopt a comprehensive analysis by switching perspectives. In many intellectual property cases, both companies and agents tend to focus on analysing evidence and legal grounds that favour their own side. However, it is crucial to pay attention to the disadvantages as well. Solely analysing evidence and circumstances favourable to your own company may foster a positive mindset, but is insufficient for understanding the true challenges of the case and the perspective of third-party adjudicators. To be better prepared in terms of evidence, contingency plans and response strategies — and more comfortable in dealing with unfavourable situations — analysing the advantages and disadvantages of both sides from a third-party perspective, or even evaluating one’s own weaknesses from the opponent’s viewpoint, are essential. Conducting a comprehensive analysis of one’s disadvantages from the other side’s perspective can avoid being caught off guard when facing a formidable opponent.
- Be realistic and proactive in response. In contentious intellectual property cases, considering the entire situation, including strengths and weaknesses of both parties and potential involvement of third parties, is crucial. It is important to plan ahead for responses instead of being swayed by emotions and putting oneself at a disadvantage. Winning in a conflict requires active effort rather than relying on automatic entitlement. Even the party that has suffered infringement must proactively prepare and present relevant evidence to gain support from the adjudicator. When facing legal liability claims, it is essential for the accused party not to respond with a mindset of innocence or feeling wronged, but rather to acknowledge their position of disadvantage due to negligence or other reasons. Only through collection of evidence and objective analysis can they strive for a settlement or mitigation of the corresponding legal responsibilities.
Objective and realistic evaluation of the pros and cons of all parties involved and acknowledging one’s own disadvantages are not easy tasks in actual cases.
Whether a party finds itself in a favourable or unfavourable position in a conflict, a thorough preparation of evidence and response plans, without harbouring any sense of luck or laziness, is crucial for confidently navigating subsequent proceedings.
In conclusion, an intellectual property strategy’s customisation and effective implementation largely depend on a deep understanding of seemingly ordinary concepts. Adequate and deep communication, both internally and between the company and its agents, is an indispensable aspect when dealing with complex and challenging cases.
The original article was published in China Business Law Journal on 20 July 2023.