With the rise of the digital age, setting up a reliable and effective compliance strategy as well as mobilizing the skills of professionals have become key factors in the company’s performance, particularly in the field of intellectual property.
From the outset, it seems important to remember that compliance includes all the processes intended to ensure that a company, its managers and its employees comply with the legal and ethical standards applicable to them.
FromLAW No. 2016-1691 of 9 December 2016 on transparency, the fight against corruption and the modernization of economic life. on anti-corruption measures to the implementation of the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (GDPR) of April 27, 2016, and including the duty of vigilance of parent companies and ordering companies (law of March 27, 2017) or the prevention of cyber risk (implementing decree of May 25, 2018 of the NIS directive), an undeniable operational impact on companies and their managers can be observed.
The key challenges of compliance with regards to intellectual property risks (I) raise questions both about the practical consequences of compliance in all aspects of intellectual property the role of the “compliance officer” in this framework (II) and the role of the “compliance officer” in this framework (III).
The challenges of intellectual property compliance
The environment as well as legal decisions revolve around the long-term development of the company and justify the establishment of real legal engineering within companies whose intellectual property is decisive. This is the key challenge of compliance, which is both a framework for thinking and a method of solving problems, involving a large number of tools and components oriented by company strategy.
Legal, regulatory and fiscal constraints are increasingly stringent and make companies bear increased responsibility in case of negligence, or even simple inaction. In particular, the regulatory framework sets out increased requirements regarding the protection of consumers and personal data.
In the field of intellectual property, domain names are key assets to contemplate when analyzing the risks and drafting compliance plans. While they are a major asset, essential to the very functioning of the business (for example, for e-mail servers, they are also risk vectors: phishing, fraud, identity theft, forged e-mail …
Online fraud can lead to loss of turnover, endangerment of consumers, and if so, risks of civil or criminal liabilities of directors for non-compliance with enforceable laws and regulations. impact the stock market price, thus causing loss of customers.
It is therefore very important to put in place the appropriate strategies to anticipate dangers, react effectively in the event of a breach and ultimately protect the company.
The practical consequences of compliance in all aspects of intellectual and digital property
Compliance has an immediate impact on all aspects of intellectual property. Also, while the legislation is more and more restrictive for companies and intellectual property professionals, compliance requirements are reinforced. How to bring your company into compliance with the laws? What are the risks of not including the Internet in your compliance plan?
Beyond its legal meaning of compliance with the requirements of laws, regulations, Codes or even directives, compliance aims to protect the company and intellectual property professionals against any non-compliance with internal and external standards and its values. Intellectual property frauds are growing and becoming increasingly complex in the digital era, which requires taking action to mitigate risks for the company business, including in terms of compliance. Its objective is to avoid adverse consequences for the company and its managers, both financial and civil or criminal liability, or damage to image and reputation. It is ultimately part of a desire for lasting growth in all aspects of intellectual property, both in France and internationally.
To cope with these new standards, companies must put in place a governance policy capable of minimizing their exposure to risk vis-à-vis their customers, their shareholders, but also regulatory authorities.
To begin with, it is essential to identify the risks through the relevant audits.
Then, it is important to assess those risks and map them. The risk management policy shall be defined accordingly.
In particular, a policy for the management of Intellectual Property related risks calls for a virtually systematic surveillance system of trademarks among domain names.
The role of the “compliance officer”
The compliance officer must protect the company from any risk of non-compliance, and therefore ensure that the organization adopts good conduct in business practice, respects the rules of ethics and finally, complies with the various laws, regulations, or even European directives. It must therefore undertake a proactive approach, organize and implement the means necessary to comply with the regulations.
Likewise, it is important to anticipate risks: once they have been defined and supervised, the mission of the compliance officer being to protect the group and its reputation, he will have to analyze the rules and standards according to the context, the activity, and the business sector.
According to a study “Who are compliance professionals?” published on March 27, 2019 and carried out by the firm Fed Legal, 92% of compliance officers have a legal background. They are operational professionals who have a strategic vision as well as a multiplicity of soft skills, in particular an ability to persuade and an interest for teaching. In addition, 60% of compliance officers belong to legal services in which there are many recruitments, both in large and small companies.
When a company is questioned, the consequences are at the same time financial, commercial and human: the company reputation will suffer greatly. The compliance officer thus takes care of protecting his company from the financial, legal and reputational risks that it incurs in the event that it does not comply with laws, regulations, conventions, or quite simply a certain code of ethics or professional conduct.
Dreyfus can assist you in the management of your trademarks portfolios in all countries of the world. Please feel free to contact us.