Intellectual Property Violations
Intellectual property violations relate primarily to trademark infringement, copyright infringement, and patent infringement. Intellectual property (IP) is the vehicle through which the government incentivizes creation and shared public knowledge. In essence, this form of property refers to creations of the mind. This can include literary works, inventions and designs along with images, names and symbols being used in commerce. By receiving IP protection, creators are encouraged to share their ideas with the public.
Intellectual Property Rights Violations
Intellectual property law violations are an increasingly common occurrence. There are a variety of ways that intellectual property violations can occur. This depends heavily on the type of IP in question. Each type provides different protections over a certain period. The different types of intellectual property include:
- Trademark: Trademarks protect recognizable marks (e.g. logos, designs, slogans, etc.) that signify a product or service’s origin. Trademarks can last forever provided they are renewed usually in 10-year increments.
- Copyright: Copyrights protect creators of original works (e.g. books, photographs, art, programs, etc.). Copyrights generally last for the owner’s lifetime plus 70 years.
- Patent: Patents provide exclusive rights over new inventions or improvements to prior inventions. For utility patents protection lasts for 20 years before entering public domain.
- Trade secret: Trade secrets are formulas, processes, commercial methods and other information or items that provide a competitive advantage. Protection doesn’t end as long as it remains a secret.
The benefits provided by registering intellectual property, result in well over 1 million applications yearly. With the number of registrations that come in each year, it’s no surprise that thousands of cases related to infringement hit the courts yearly. For copyrights, trademarks and patents, the problems arise when another entity uses the intellectual property without permission. This is similar with trade secrets, but the issue in this situation is misappropriation rather than normal unapproved use.
The fact is that you have certain rights over your intellectual property. This is the case even when you haven’t filed for copyright registration or trademark registration. And unlike patents, which must be registered to receive protection, the whole point of trade secrets is that they’re not registered. When your rights are violated, it’s up to you to take action in the form of trademark litigation, copyright litigation or patent litigation.
Intellectual Property Violation Example Cases
There is no shortage of real-world intellectual property infringement example cases to examine. You may have seen some of these in the news, and they serve as evidence that IP infringement isn’t an uncommon occurrence.
- Apple vs Samsung: Everyone can immediately recognize the rounded corners on an Apple iPhone. It turns out that Apple actually patented this design feature. After Samsung used the same design, they were ordered to pay hundreds of millions in damages for patent infringement.
- The Downfall of Napster: An 18-year-old student created Napster back in 1999, and it immediately allowed people around the world to download copyrighted songs without paying for them. A&M Records – along with several other record companies – filed a lawsuit claiming Napster contributed to copyright infringement. The peer-to-peer network lost and was eventually shut down.
- T-Mobile Owns Magenta: Millions of marketing dollars have been spent by T-Mobile to associate the color Pantone 676C – typically just referred to as “magenta” – with their brand. When a cell phone service associated with AT&T started using the same color, a trademark infringement case ended up in the courts. The judge decided in favor of T-Mobile.
Intellectual Property Violations on Amazon
The Amazon Marketplace has expanded exponentially in recent years. Its premium service alone went from 23 percent penetration of American households to 51 percent in under three years. With so many buyers and sellers on the platform, it’s no surprise that intellectual property violations on Amazon are a normal occurrence.
There are numerous ways that intellectual property infringement can occur on Amazon, but they break down into Amazon trademark infringement, Amazon copyright infringement, and Amazon patent infringement. One of the most common trademark infringements is the sale of counterfeit merchandise. Copyright violations can also occur through the sale of pirated or copied music, films or art. Patent violations occur when someone sells an item that utilizes all elements of one or more of the claims of the patent of another.
If you are experiencing intellectual property infringement, we almost always recommend having us send a cease and desist letter.
Intellectual Property Violations in Computing
The digital age changed most aspects of Americans’ lives. In fact, it has increasingly made its way into the home. By 2015, over 70 percent of U.S. citizens owned a desktop or laptop. Digital technology affects us all, but creators must pay close attention to intellectual property violations in computing. Intellectual property violations in computing can occur in innumerable ways but they all break down into either trademark infringement, copyright infringement, or patent infringement.
Intellectual Property Violations Cease and Desist Letter
A cease and desist letter sent by an intellectual property attorney that litigates can be remarkably effective in resolving intellectual property infringement issues. The fact that only 3 percent of legal disputes end up in court is a testament to just how effective these formal letters can be. By sending this document to an alleged infringer, you’re letting them know you’re aware of their actions and are ready to defend your intellectual property rights.
Unfortunately, sending a letter yourself that simply says “stop infringing my rights” usually isn’t quite enough. Apart from our recommendation that it come from an intellectual property attorney that litigates, there’s certain information that should be included in every cease and desist letter.
- A demand that the infringing activity immediately stop
- The specifics of the infringement (registration number, dates of infringement, dates of first use, evidence of the infringement, etc.)
- The legal action that will ensue if infringement isn’t ended
- A deadline for the recipient’s response to letter
In many instances, an intellectual property violation cease and desist letter can put the matter to rest. This is especially the case if the recipient didn’t know they were infringing. If a letter is ignored, trademark litigation, copyright litigation or patent litigation is often the only way forward. For those who have received cease and desist letters, it’s important to respond even if the letter seems frivolous. This could prevent you from being sued. Keep these things in mind when responding:
- Give them reason to go away: The goal of your response letter is for the alleged IP owner to cease contact. This can be done by showing a knowledge of intellectual property laws and explaining why their claims are flawed
- Check the accuracy of their allegations: These disputes can often be ended with just a little research. Was your trademark in use prior to theirs? Were designs for a patented item previously published in trade journals? Get the facts straight, and they may be dissuaded from litigation.
- Look for actual evidence of infringement: Intellectual property trolls use cease and desist letters as a way to stymy competition. Do the claims in the letter actually constitute infringement or is the sending over reaching?
- Consider the IP in question: If a trademark is involved, is there a likelihood of confusion? For copyrights, are your actions covered under fair use? When it comes to patented items, is the patent valid?
The real work with a cease and desist letter or a response is the due diligence and background research on the facts and law. Oftentimes solid research is what wins the case. Keep in mind that these responses don’t always refuse compliance. If it turns out you are violating intellectual property laws, a response saying that you disagree with the claims but that you will meet the demands may be warranted.
Intellectual Property Litigation
While cease and desist letters are a great first step, they can’t solve all problems in every instance. Maybe there’s disagreement over whether infringement has occurred, or maybe the infringer doesn’t recognize the potential consequences and continues their actions. Regardless of the specific circumstance, intellectual property litigation may be necessary. In intellectual property litigation you can expect the following:
- Case is filed: After a complaint is filed in court, it needs to be served to the alleged infringer. They’ll have an opportunity to respond. If they fail to do so, a default judgment may issue.
- Discovery: This is the process when both parties in a case can request related evidence from the other side. Expert interviews and witness depositions are handled during this phase as well.
- Summary Judgment: After discovery each side may presents their arguments for summary judgment. If there are no facts in dispute, the judge may enter a summary judgment as to certain issues or as to the entire case.
- Trial: When the facts or law remain in dispute, the case will proceed to trial. Each side will present their case to a judge or jury.
- Decision: After hearing all evidence, the court will issue a ruling. The opportunity for appeal typically exists at this point.
Keep in mind that the two parties can settle at any point during this process. Once the court hands down a decision, though, there are several potential remedies. These can include injunctions, attorneys’ fees, actual damages, royalties, treble damages and punitive damages. In many cases, additional damages are only awarded in cases where willful and malicious infringement can be proven.
The outcome of your case can vary greatly based on the type of intellectual property in question. There are also instances where the defendant may be awarded attorneys’ fees if a lawsuit is brought in bad faith. For more information please see our trademark litigation, copyright litigation and patent litigation pages.
Mandour & Associates – Intellectual Property Violations Attorneys
Whether someone is infringing upon your intellectual property rights or you’re wrongfully accused of violating IP laws, we’re here to help. In some cases, failing to act quickly could cause you to lose your rights altogether. We are highly experienced intellectual property attorneys that can assist you regardless of your situation.
For a consultation regarding intellectual property violations, please contact us today.