Intellectual property – such as copyrighted material,
trademarks, and patents – can include some of the most
valuable assets for business owners, but rights related to
intellectual property are also difficult to protect, and even more
challenging to enforce.
If you own a business, or have been accused of committing
intellectual property infringement, you need to know your rights.
Below are 10 of the most frequently asked questions about
intellectual property infringement!
1- What is intellectual property infringement?
Infringement is the violation of somebody’s (or some
entity’s) intellectual property rights. Trade secrets, patents,
trademarks, and copyrights are some examples of intellectual
property. Copyright infringement, for example, occurs when a person
(or entity), without permission, uses, reproduces or distributes
somebody else’s work; a patent infringement can occur when
someone or some entity uses a patented innovation illegally.
Intellectual property infringement is detrimental to creativity,
as it disregards the creative rights of an owner. A person or
entity that infringes upon another’s intellectual property can
be sued and ordered to pay damages and/or stop the infringement
immediately (an injunction).
2- What legal actions can be taken against intellectual
property infringement?
It is illegal to use someone else’s registered intellectual
property without their permission. If you do this, you could face
legal consequences. If someone uses your intellectual property
without permission, the infringement could be resolved by issuing a
cease-and-desist letter to the infringer telling the infringer that
they need to stop using the protected intellectual property.
The next step after sending a cease-and-desist letter is to
confiscate the protected property. After preventing the violator
from further using the intellectual property, the rightful owner
can sue the infringer and seek compensation for damages.
Anyone who infringes on intellectual property can also face
criminal charges. Criminal charges of intellectual property rights
infringement may result in a fine or prison.
Alternative methods, such as arbitration and mediation, could be
used to resolve the conflict if both parties agree. If not, the
case will be brought to court, and a judge or jury will determine
the outcome.
3- How can I enforce my intellectual property rights?
Enforcement of intellectual property rights is difficult, but
there are steps you can take to protect yourself.
- To obtain official documentation of your ownership and defend
your rights in court against others, you should first register with
the USPTO. - Second, you should monitor the marketplace for infringements of
your intellectual property. - If you find infringement, schedule a consultation with an
intellectual property attorney who can advise you about what steps
you can take to address the infringement, including sending a
cease-and-desist letter to the infringer and potentially taking the
infringer to court.
With aggressive and proactive measures, you can assert your
interests to the highest practical extent.
4- How long does it take to resolve an intellectual property
infringement case?
An intellectual property infringement matter can take as little
as a few weeks, a few months, or even as long as several years to
be resolved. Multiple factors can contribute to the length of a
case, including:
- the level of complexity
- the number of court filings submitted by each party
- the amount of evidence required to support a claim
- whether the matter actually goes to court or settles by
alternative dispute resolution - how clogged the court’s docket is
- the number of expert witnesses
- and if the case goes through the court process
- whether or not there are appeals
- and more.
5- What evidence is needed to prove intellectual property
infringement?
Evidence of copyright, trademark, or patent infringement can be
established in various ways, depending on the specific legal
property in question and the facts of the case.
- In copyright law, proof of infringement often involves
presenting the original work and any unauthorized copies, as well
as demonstrating the infringer’s access to the protected work
and any similarities between the protected and infringing
works. - In a trademark infringement case, evidence may include proof of
ownership of the registered brand and proof of customer confusion
or deception. - In a patent infringement case, the evidence would typically
consist of the patented invention and evidence of the accused
party’s unauthorized use or manufacture.
To prove infringement of a copyright, trademark, or patent, it
is necessary to demonstrate ownership of the intellectual property
and provide evidence of the infringement. Additionally, proof of
damages or injury may also be required.
6- Can a cease and desist letter help stop intellectual
property infringement?
Yes! Cease and desist letters are designed to stop IP
infringement. A cease and desist letter is a legal warning from an
IP owner to an infringer that their unauthorized use of IP must
stop. It tells the infringer exactly what acts must cease
immediately, and the consequences of continuing the infringement.
It almost always requires the infringer to pay the IP owner money
for the infringement.
When properly drafted, a cease and desist letter tells the
infringer that the IP owner is serious about getting their
infringement to stop. The IP owner tells the infringer that the
next step, after the infringement has stopped, is that the IP owner
will sue if the infringement continues. A cease and desist letter
deters infringement, and often stops the infringement quickly, and
protects the IP owner’s rights.
7- How can I avoid unintentional intellectual property
infringement?
People and companies need to do all they can to avoid getting
caught up in an inadvertent infringement of IP rights that can
result in a lawsuit. First, do your research. You need to ensure
that the IP you want to use is not copyrighted and that it has not
been trademarked.
Moreover, keeping records of your research and where you got
your information demonstrates good faith in your research and where
you got the information. Lastly, if you are using someone
else’s IP, credit the inventor and owner of that IP. This
prevents you from claiming IP as your own and avoids any charges of
infringing on someone’s IP.
8- What role do intellectual property lawyers play in
infringement cases?
Intellectual property attorneys advocate on
their clients’ behalf in infringement proceedings. Their
professional duty is to protect their clients’ IP rights and
interests from infringement. Intellectual property attorneys
investigate their clients’ claims and gather evidence in
support of such claims in an infringement proceeding. When it is In
their clients best interests, they will try to settle the case out
of court, but if necessary, they will initiate and prosecute
lawsuits. Intellectual property attorneys can defend clients
accused of using someone else’s creative assets.
9- Can a company be held liable for the actions of its
employees committed in the course of employment in cases of IP
infringement?
Employers can be held liable for employee infringement through
“vicarious liability.” If an employee
infringes on the copyright of a third person, the company might be
held liable for the acts of its employees. They might try to
mitigate their liability by proving that it made efforts to prevent
the act or that the person committed the infringement outside the
scope of his or her job. Companies can further protect themselves
by having procedures for training and monitoring their employees
with respect to intellectual property rights.
10- What are some common defenses used in intellectual property
infringement lawsuits?
There are a number of different defenses available in cases of
intellectual property infringement.
- The idea of fair use, which allows users to make restricted
uses of copyrighted material without permission in situations that
are instances of criticism, commentary, or education, is one of the
most frequently used defenses in intellectual property infringement
cases. - The defendant might assert that his work is not so similar to
that of the protected work. - The defendant might argue intellectual property first sale,
which is the theory that allows defendants to resell or distribute
otherwise protected works. - The defendant might assert a defense that intellectual property
infringement was accidental or inadvertent. - The defendant might assert a lack of intellectual property
rights or waiver of intellectual property rights. - And more…..
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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