Intellectual Property Violation: Everything You Need to Know
Instances of intellectual property violation are increasingly common because of the internet, where an intellectual property is accidentally or purposely used.3 min read
2. Contact an Attorney
Instances of intellectual property violation are increasingly common because of the internet, where it is easy for individuals to accidentally or purposely use intellectual property that has been legally registered with the Library of Congress or the United States Patent and Trademark Office.
A contributing factor is that even experts in intellectual property may differ on opinions as to what actually comprises intellectual property. Whereas once the standard rule of thumb was that intellectual property included only written and recorded materials, artwork, logos, protected phrases, and inventions, today it can be things that are intangible, such as goodwill and brand recognition. Therefore, determining when a violation of an owner’s rights have been infringed or stolen, as well as mounting an appropriate defense against these claims has also grown more difficult.
If you should find yourself the recipient of a demand letter, which is commonly the first step an owner of intellectual property will issue against someone suspected of violating their rights, there are several steps are recommended.
Review the Demand Letter
Also referred to as a “cease and desist” letter, this correspondence, prepared either by the owner or his/her attorney, presents the case against you and the remedy sought by the owner. Make sure it contains the following elements:
- The type of intellectual property you are accused of using without permission. This is important because, depending upon which of the three categories of intellectual property (copyright, trademark, or patent), the next steps you take may vary.
- That the owner clearly establishes their right to the property. The letter must have the copyright, trademark, or patent number and year of registration. Verify that the property is indeed under ownership and not merely in the review process.
- A clear description of the alleged infringement. In order to mount a defense, you must know what you have done to warrant the letter in the first place. It must be specific and not a general statement of misuse. Unless they can clearly present their argument, you may not have committed a violation.
- What relief the alleged owner is seeking. It could be easy to comply with, such as no longer using a photo or image on your website or paying money to make up for lost sales or income due to your appropriation of their property.
- When your deadline to answer the allegations is. Without a deadline, there is no urgency for you to respond, and the letter is basically meaningless. If there is a deadline, determine if it is reasonable and you can comply within the allotted time or need to contact the sender to request an extension.
- Proof that you have actually violated the sender’s rights. Don’t assume you’re in the wrong just because you’ve received a demand letter saying you committed an intellectual property violation. There are countless instances where claims were unjustified and there is not clear evidence of misuse. It is not uncommon for property owners and attorneys to respond to perceived wrongdoing without plausible justification.
If the letter has merit, the next step is to mount your defense.
Contact an Attorney
If you determine that there is the possibility that there is an intellectual property violation, it’s time to plan your next step. In the best-case scenario, complying with the demand letter is as simple as no longer using the property. However, this might be the time to get legal help.
- Make sure the attorney you turn to is licensed to practice in the field of intellectual property. Even within the practice of intellectual property law there are differences areas of expertise. A trademark attorney may not be an expert on patents and vice versa. There are also IP attorneys who specialize entirely in litigation, regardless of their field.
- Compile proof to support your claims. The stronger you can make you case from the outset, the stronger case the attorney can make on your behalf when responding to the charges present in the demand letter.
- Weigh your options. Before taking any action, your attorney should provide an impartial assessment of the course you should pursue. Don’t let your emotions determine how you proceed, but instead plan your next step based on the facts as presented after he or she has reviewed your case.
To learn more about how to respond to intellectual property violations, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.