Orange County Intellectual Property Attorney
Intellectual property refers to distinct concepts including trademarks‚ copyrights‚ patents‚ trade dress‚ trade secrets and Internet domain names for which exclusive rights are recognized and governed by corresponding laws. Protecting your IP rights has become increasingly critical in a competitive global economy. Your intellectual property is what drives innovation and improves the world through life-saving inventions‚ technologies‚ brands, medicines‚ and job creation.
Intellectual Property Basics
Intellectual property law is effectively the government incentivizing the formation and dissemination of knowledge that benefits the public at large. Whether it’s the latest biography about a former leader or a new manufacturing process that cuts costs in half, the increase in collective intelligence is seen as a benefit for society.
The most common forms of intellectual property are:
- Trademark: A word, phrase or design that designates the source of products or services. Please see our trademark page for more information.
- Trade dress: The aesthetic and visual elements of a particular product or its packaging. For example, the shape of a glass Coca-Cola bottle. Trade dress can be registered as a trademark.
- Copyright: This right is granted to creators of original works of authorship. It allows them to dictate whether someone can use their work. This protection applies to books, songs and movies. Please see our copyright page for more information about copyrights.
- Patent: An exclusionary right that prevents others from manufacturing, using or profiting from a new invention. If you have a patent issue, please see our patent page.
- Trade secret: Companies can protect their knowledge through secrecy rather than patents and other forms of intellectual property. KFC’s original recipe is an example of a trade secret.
Length of Intellectual Property Protection
Nearly every form of intellectual property ends after a specific timeframe. While you may have the option to extend the protections afforded to your creation, this is only in select cases.
- Trademark: As long as your trademark isn’t found to be diluted, there is no expiration so long as it is continually renewed which is between the 5th and 6th year and then every 10 years after registration.
- Copyright: Copyrights typically last the lifetime of the author plus 70 years.
- Patent: Utility patents typically last 20 years and then enter the public domain. They cannot be renewed. This is why some companies opt for trade secrets.
- Trade secret: As long as a trade secret isn’t publicly revealed, protection is indefinite.
Intellectual Property Infringement in Orange County
Intellectual property infringement is a huge problem in the United States. Counterfeit products alone cost the U.S. economy over $200 billion every year. Fortunately, intellectual property owners have several options when it comes to dealing with IP infringement.
If you notice your IP being infringed upon, you should always take prompt action in the form of either a cease and desist letter or filing a lawsuit.
How to avoid IP Infringement
Even if you’ve registered a trademark, patent or copyright, it’s important to proactively monitor potential cases of infringement. Avoiding court altogether is ideal since certain defenses could actually nullify your IP rights. Here are just a few ways to catch cases of infringement before they become big issues:
- Set up Google Alerts: By setting up Google Alerts, you will be notified whenever certain words or phrases related to your intellectual property are posted online.
- Police your industry: Any potential infringement will likely occur in your area of expertise. Stay on top of research, publications, new companies and any other important trends within your industry.
- Utilize third-party help: Certain vendors and intellectual property attorneys can monitor potential misuse of your creative works.
- Don’t ignore trademark dilution: The word “trampoline” was once trademarked, but its use became so common that it’s now generic. Don’t let others infringe upon your trademark even if it seems innocent.
Many of these tips apply regardless of which side of the intellectual property fence you’re on. Monitoring industry publications, for instance, could help you identify infringements on your IP and also help you avoid infringing on other creators’ works. The following tips apply more towards those in the latter situation.
- Search IP databases: If you’re unsure whether an aspect of your product or idea is already protected, there are online governmental databases you can search to be safe.
- Utilize airtight contracts: Hiring a contractor to create something for you doesn’t immediately make it yours. Make sure your contracts explicitly state that you will take ownership over freelance works.
- Always read the fine print: Even if you plan on using someone’s IP legitimately, you must be careful about how it’s used. Read the fine print in every contract or license to ensure you know your usage rights.
- Respond to infringement claims: Even if you think you’re being harassed by a patent troll, you need to respond to any claim of infringement. At times, a sternly-worded letter from your IP lawyer will be enough to make these claims disappear.
These steps can help you easily avoid most claims of intellectual property infringement. Just remember that U.S. IP protection doesn’t guarantee protection overseas.
Protecting Intellectual Property Overseas
One of the biggest current issues in the area of intellectual property is foreign infringement. Laws differ in every country, and protection in one doesn’t equate to protection in another. The first step in protecting against foreign infringement is to register your intellectual property with foreign governments. Even China – who’s historically been soft on American IP protections – is taking steps to eliminate theft. If overseas producers can’t be touched, their third-party distributors and shippers in America can be.
Defenses Against Intellectual Property Infringement
There are several defenses against intellectual property infringement claims. If you feel your rights have been violated, knowing these can help prepare a better case or give you more insight.
- Trademark: Those accused of trademark infringement assert defenses such as: a lack of confusion, fair use, failure to assert a valid trademark, too much time following discovery of the alleged infringement before taking action (doctrine of laches), or that the claimant’s inappropriate behavior precludes them receiving damages.
- Patent: Defenses against patent infringement include invalidity, non-infringement, patent misuse and failing to meet statutory limits.
- Copyright: Complainants may be unable to receive damages if fair use occurred, the statute of limitations expired, the use was authorized, or the work was independently created.
- Trade secrets: Although not registered, trade secrets are afforded protections. Defenses against these violations include public domain knowledge, failure to maintain secrecy, independent discovery and reverse engineering.
It’s important to remember that this list isn’t all-inclusive. Additionally, a particular defense may be appropriate even if it’s not immediately apparent.
How to Respond to Intellectual Property Infringement
Responding to instances of potential misuse is important. Typically, this involves responding to a cease and desist letter. A Digital Millennium Copyright (DMCA) takedown notice is the internet version of a cease and desist letter.
Responding to Cease and Desist Letters
If you’re on the receiving side of a cease and desist letter, it’s not going to simply go away if you ignore it. The first thing you should do is hire an intellectual property attorney. Responding on your own or while you’re angry or nervous will give the sender even more power. If you are accused of willingly infringing intellectual property, your attorney will know the best course of action.
If for one reason or another the cease and desist letter process does not bring the desired outcome, then litigation is the next step.
Intellectual Property Litigation in Orange County
You obviously can’t let your inventions, processes or other creations be misused. Doing so could result in the loss of your intellectual property.
The filing of a complaint usually in federal court is the first step in an intellectual property infringement lawsuit. Frequently these cases end with default judgements because the defendant fails to even show up to defend itself. If this isn’t the case, though, you can expect the following to play out.
- Answer or Motion to Dismiss: After service of the complaint, the defendant has 21 days to file an Answer or a Motion to Dismiss. Common grounds for dismissal include a failure to state a claim or improper venue.
- Scheduling: Once a response has been filed to a complaint, the judge will set the schedule for the case. This will include discovery, target trial dates and other important deadlines.
- Discovery: This is when each side requests information from the other. If information is deemed relevant, it must be produced. This is also the time when intellectual property experts can be interviewed and witnesses can be deposed.
- Summary judgement: After discovery, the parties may file motions to the court that seek to end the case or at least end certain aspects of the case.
- Trial: For all issues that remain in the case, a trial occurs in which each party presents their case to a jury or judge that issues a verdict. A settlement can be reached at any time during the case including after a verdict is issued.
Intellectual Property Litigation Outcomes
There are numerous potential outcomes when it comes to intellectual property litigation. Here are just a few of the outcomes you can expect:
- An injunction may issue which is a court order that instructs the defendant to refrain from certain actions.
- The defendant may have to surrender all works to the court or destroy them.
- The defendant may be required to pay the plaintiff’s actual damages or to turn over its profits.
- If actual damages can’t be calculated, defendant may be required to pay reasonable royalties or statutory damages.
- In exceptional cases, an infringer could be held liable for attorney fees.
- If infringement is deliberate, punitive damages could be awarded.
Mandour & Associates – Orange County Intellectual Property Lawyers
Whether you seek advice concerning trademarks‚ patents‚ copyrights‚ or trade secrets‚ our Orange County Intellectual Property Attorneys are eager to assist you. With experience in all areas of intellectual property‚ our attorneys will work with you to ensure that your rights are protected.
If you have any intellectual property questions or are in need of legal assistance, please contact us.