An intellectual property strategy is a key part of your company’s value. It ensures that you are able to commercialize your work, and it makes you an attractive investment. After all: if your company’s creativity, inventions, brand, and ideas are not your property, there is no point in investing in it.
Many companies have a carefully considered intellectual property portfolio, and spend a lot of effort and money on obtaining the necessary intellectual property rights in their work. However, that is really only half the job. The other half is intellectual property protection: taking action when infringement does happen, as it almost inevitably will.
The first step towards effective intellectual property protection is monitoring: you can’t take action on infringements if you do not know they are happening.
Today’s article will focus on the second step, however: if you do discover that your work has been used without permission, what do you do? As is often the case with legal questions, the answer is: it depends on the type of infringement. We discuss trademark, patent, and copyright infringement below.
Copyright refers to your exclusive right to reproduce, distribute, display, and derive from your original work. If you have standard IP assignment clauses in your employment contracts, your company has this right with respect to all original work that is produced by its employees. Note, however, that copyright does not extend to facts, ideas, systems, or methods of operation.
In other words: if the infringement in question is that someone is using your company’s graphics, written content, visual elements, or code, you are dealing with copyright infringement (provided that your company is the original creator of the work).
The good news is that copyright arises automatically as soon as the work in question has been created/developed in tangible form. If you find that someone has been using your copyrighted material, you have a right to:
Informally request they take down the material
Send a cease and desist letter (provided that you can prove copyright infringement)
File a DMCA takedown notice with the host if the infringement is online
Sue for damages in terms of the Copyright Act or the DCMA, depending on the medium where the infringement is taking place.
The bad news is that, in order to file a civil suit for damages, or get a formal cease and desist order, you need to have formal proof of your copyright. In practice, this means proof of registration of your copyright with the United States Copyright Office (USCO).
Often, however, an informal request or a takedown notice is sufficient to get the offending party to stop using your content. That should always be your first step. If the infringing party is not cooperative, you might want to make use of your copyright registration. Given that copyright registration is a relatively easy and cheap process, you might want to consider registering your most valuable content as a precautionary copyright protection measure.
Trademarks, or service marks, refer to the name under which your company does business, your logo, symbols, and/or slogans. Trademark represent your brand and your company’s specific and unique market presence. If the infringement in question is that another party is using your branding materials, logos, slogans, etc., you are dealing with trademark infringement.
Although you are allowed to mark your brand as trademarked (TM) unilaterally, that in itself offers no legal protection. In order to have an enforceable right to your trademarks, they have to be registered with the USPTO. Trademarks should be registered at both state and federal levels.
If someone is using your trademark unlawfully, you will be able to file a civil suit, and some or all of the following remedies will be available to you, depending on the situation:
An injunction that the defendant has to stop using the mark
An order requiring the destruction or forfeiture of infringing articles
Damages and, in some cases, your legal costs as well.
When a court decides whether or not there has been trademark infringement, it will consider the degree of similarity between your mark and the other party’s use of it, the likelihood of confusion among consumers, and the validity of your trademark. The validity of your ownership of your trademark is automatically assumed by the court if you can prove registration.
If the infringement in question is another party’s use of your patented inventions or designs, you will have to decide on a patent prosecution strategy.
In the case of patents, you only have ownership of a patent upon registration. If you have not registered a patent, you might be able to prosecute the infringement as an infringement of trade secrets, but that will only be feasible in very limited circumstances.
If you do have ownership over our patents, however, you can file a civil lawsuit for damages as well as an order that the offending party cease and desist. It is important to note, however, that patent prosecution is an expensive process where larger companies tend to outspend smaller ones. It is advisable to be strategic about when and to what extent you pursue patent prosecution, therefore.
Intellectual Property Attorneys
Let intellectual property lawyers secure your patents, trademarks, and copyrights. An intellectual property lawyer can help ensure your original work is protected from unauthorized reproduction or use. use. LawTrades understands that you need the best IP lawyers, but you don’t always have access to intellectual property services at an affordable rate. Our company provides access to online legal services that you can use to ensure your intellectual property is protected.