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How do I choose where to defend against trade secret violations?

If you watch a crime drama on television, occasionally you'll hear prosecutors and police talk about finding a "friendly" judge who will give them the warrant they need to advance their case. Lawyers on the defense side might do something similar. Such venue shopping happens in civil cases, too. The strategy is to find a setting that offers the best chance of achieving the desired outcome.

Many issues fall under the heading of business litigation. Intellectual property matters reflect just one. And under that umbrella is the specific issue of brand value protection through defense of trade secrets.

As we have noted previously, IP protection can be particularly challenging for U.S. companies that do business in China. It is also an issue for U.S.-based companies seeking to fend off threats from competitors from China or elsewhere. The effort takes on an added dimension if the competition results because of trade secrets misappropriated from you.

What laws might apply?

The loss of secrets can happen fast. All it takes to transmit the data is an email or a text. Competing products can seem to appear almost overnight and have disastrous implications. Swift action in defense of appropriated trade secrets is therefore important.

Two particular laws offer protection. One is the Uniform Trade Secrets Act. Most states in the U.S. have adopted this or language similar to it, providing some consistency in adjudication within our own borders. The second, the Defense of Trade Secrets Act, is a federal measure that gives U.S. litigants access to justice when a foreign player infringes on trade secrets. And two possible venues exist for action – U.S. District Court and the International Trade Commission.

Which you should choose depends on the circumstances of your case after consulting with an experienced international business attorney. However, some legal observers suggest the ITC deserves first consideration. Here's why.

The ITC is considered faster at resolving claims than the federal courts. In addition, a District Court in Wisconsin decided this past December that it would not hear a DTSA trade secret case on which the ITC had already ruled. It said the ITC action precluded the case from being re-litigated in the federal court system. Some see that as strengthening the ITC's role as an arbiter in such cases.

Again, every case is different, so proper assessment by skilled legal counsel is important.

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