Many companies routinely use private investigators or other covert techniques to review possible infringements, including to obtain evidence of infringement and unfair competition by competitors, and to gauge the scope and structure of a potential infringer’s operation. Navigating the proper use of investigators and other undercover techniques can feel a bit like navigating the Wild West. The rules are not always well-defined and can vary by state. The timing of investigations can raise ethical issues as well. Even if the use of private investigators is permissible, there can be questions about the most effective way to use these procedures and how to convert what is yielded into useable evidence at a hearing or trial.

Kilpatrick Townsend attorneys Nicki Chollet and Chris Bussert along with Cellaris Franchise, Inc.’s Jason Adler recently spoke on the topic of “Ethics: Investigations Gone Wild” at the firm’s annual Advanced Trademark Law Seminar.

Key takeaways from the presentation include: