What Do to If Someone is Infringing on Your Intellectual Property Rights: Trademark, Copyright, and Patent Infringement
Intellectual property (IP) can be staggeringly valuable. Recently, the US-China trade war has escalated in part because of estimates that Chinese theft of US intellectual property costs between $225 and $600 billion annually, according to the U.S. Trade Representative. If you own intellectual property, you should be aware of how you can best protect that IP and what you can do to stop someone from infringing on your trademarks, copyright, or patents.
Proper Registration
The first and best line of defense against intellectual property theft is proper registration of your IP. Trademarks protect your business’s name, logo, symbols, designs, or key marketing phrases. You can apply for trademark protection through the United States Patent and Trademark Office (USPTO). Copyrights protect your original works, including music, choreography, motion pictures, literature, sound recordings, and even architecture and websites, among other things. You can register a copyright with the United States Copyright Office. Finally, patents protect principles, components, and mechanisms associated with your original ideas, including products and processes. You can register a patent with the USPTO. It is best to work with an intellectual property attorney to register your IP, as the process can be complicated and filing fees are non-refundable.
Cease and Desist Letters
If you believe that someone is infringing on your trademark, patent, or copyright, whether by marketing a product that you designed, using your logos or marketing phrases, or reproducing and distributing your original works, you should contact an IP attorney right away to explore your options for stopping the infringing activity.
First, your IP attorney will examine the facts in your case to determine if your intellectual property rights have been infringed upon. The legal standards for trademark, copyright, and patent infringement are all different and an experienced IP attorney can help you make a legal determination as to whether your rights have been violated. If your attorney determines that your trademark, copyright, or patent rights have been infringed upon, they will discuss different options with you of how to respond. Typically, the first step to stop IP infringement is to send the infringing party a “cease and desist” letter.
A cease and desist letter informs the person or business that is infringing on your intellectual property of their wrongdoing and demands that they stop their infringing activity immediately. It identifies your relevant copyright, patent, or trademark registration to the infringing party. Your attorney is also likely to submit examples of the infringing conduct and inform the infringing party that your IP is protected by U.S. federal law. If this demand is not effective, your attorney will likely discuss the pros and cons of litigation for your specific circumstances.
Keep in mind that even though a cease and desist letter is a common first response to IP infringement, it may not be an advisable option in every case. You should work closely with your IP attorney to form the best strategy for your circumstances and appetite for potential litigation.
Filing a Takedown Letter
If you learn that someone is making your copyrighted material available over the internet, you should contact a copyright attorney to assist you in demanding that the infringing material is taken down. Specifically, your attorney may recommend sending a “takedown letter” under the Digital Millennium Copyright Act (DMCA).
The DMCA, a law passed in 1998, provides significant protection to copyright holders. It authorizes a copyright holder to send a notice to a search engine like Google, an internet service provider, or the owner of a website to remove material from their search engine or website that infringes on your copyright. You may not even need to have a registered copyright to send a successful DMCA takedown notice, depending on the facts of your case.
Assuming that you own the copyright to the infringing content in question, the content does not fall under a free speech exception like the fair use doctrine, and the content is being infringed online, your attorney can send a DMCA takedown letter to the person or company that is hosting the infringing content online. However, before sending a takedown notice, your copyright attorney will closely review your original work and the allegedly infringing material to determine if such steps are appropriate and rule out an exception under the fair use doctrine.
Litigation
If you are unable to stop someone from infringing on your work through a cease and desist letter, DMCA takedown notice, or other similar means, you may be forced to go to court to protect your intellectual property. At The Myers Law Group, our experienced team of intellectual property attorneys in Orange County can help you through this process, which can be complicated and time-consuming. We can also assist you earlier in the process, either by advising you on when and how to draft a cease and desist or takedown letter, and also by assisting you in properly registering your intellectual property with the appropriate government office.
For assistance in protecting your valuable intellectual property rights, call us today at (949) 825-5590.