As a business owner, your intellectual property (IP) is one of your most important assets. Intellectual property rights (IPR) protection is necessary to protect your inventions from being stolen or copied. To ensure that your inventions are spread and benefit more people, incentives have been put in place.
This article will discuss what is considered IP infringement and how to protect your business or brand from IP infringement.
Table of Contents
What constitutes intellectual property infringement?
Types of Intellectual property infringement
Examples of Intellectual Property infringement
How can you avoid Intellectual property infringement?
Remedies For Intellectual Property infringement
What constitutes intellectual property infringement?
Intellectual property (IP) infringement refers to any violation of or breaching of protected intellectual property rights. If your IP rights are violated, it means that your work has been copied or used illegally without your consent.
IP infringement may include copying, reproduction, distribution, and unauthorized use of IP rights. It can also include counterfeiting, which is the practice of making copies of genuine goods in an attempt to deceive the recipient. Although intellectual property infringement can be a serious matter, it is often difficult to determine when infringement actually takes place.
Types of intellectual property Infringement
It is against the law to infringe Intellectual Property Rights (IPRs) attached to any piece of intellectual property. The IPR owners have the power to stop others from copying, duplicating, or exploiting their work.
Intellectual Property infringement could fall under several categories:
Copyrights can only be infringed when the unauthorized use includes the entire or a substantial part of the copyright works. Unauthorized use involves copying, renting, or lending copies, performing, showing or playing, communicating, adapting, or translating copyright works.
To succeed in an action for infringement, it is important to prove that the alleged infringer intended to and did copy the work and did not independently create it.
Patent Infringement means to manufacture, use, sell, or import a patented product/process without permission from the patent owner. If you infringe a patent, the owner can take legal action against you and claim damages or an injunction legally preventing further infringement.
Registering a trademark grants the owner exclusive property rights to the trademark’s use. Trademark infringement happens when someone uses a similar or identical trademark for identical or similar goods or services as the trademark already in use without the consent of the trademark owner. That person infringes the trademark.
Examples of Intellectual Property Infringement
There are many ways that IP infringement may occur, but these are the most common:
- Intellectual Property infringements in mobile app marketplaces and third-party sites
- Using an identical logo in order to boost sales
- Copying and claiming your writing as their own
- Social media where fraudulent profiles use trademarks and copyrighted materials to represent a brand.
- Stealing confidential information (with and without an employment agreement)
- Manufacturing patent-protected items without your permission
- Intellectual Property infringements in mobile apps marketplaces and third-party sites where fraudulent applications install malware to steal user credentials for malicious purposes or misrepresent your brand.
- The practice of leasing or selling your patent to someone who doesn’t have the legal authority.
How can you avoid intellectual property infringement?
Due to the high cost of IPR violations, it is important to make sure that you aren’t using protected content in an improper manner.
As a small business, it is prudent to check the U.S. Patent and Trademark Office database to ensure that a brand, product name, logo, or design has not been registered. We suggest that business owners follow the steps below to prevent inadvertently violating the IP rights of another person or business.
To decrease the chance of copyright infringement:
- Make your own original images. This is the best method to avoid copyright infringement.
- You must not use images or photos without permission. You cannot use images or photos of another person found online, in third-party catalogs, or images that another merchant has used to list their products. You might consider any information found online as being protected by copyright law.
- You can use the image of another person if you contact the author and ask permission.
To lower the chances of trademark infringement:
- You must not use the trademarks of others unless you have the proper licensing or other legal permissions.
- You should not use screenshots of the product listing from third-party catalogs or the internet listings for your brand
- Make sure that all images and text used in your product listings accurately reflect the item.
To decrease the chance of counterfeiting:
- Avoid selling replicas, counterfeits, and fake versions of the actual products.
- Only sell legal and authentic goods
To lower the chances of patent or community design infringement:
- You must not use a patented invention or design without permission from the patent or registered community designer.
- To avoid a right to publicity violation:
- You should not use a person’s name or likeness, or aspects of persona in your listing.
- You must not use photos of famous celebrities or models for your product listing without their permission.
Remedies For Intellectual Property Infringement
Every type of intellectual property (patent, copyright, trademark, trade secret) is protected by the law, from company brand logos to mechanical processes, to movies, to written works.
It is advisable to get familiar with the laws and and know your legal remedies if your intellectual property rights have been violated. Violations of intellectual property rights can be considered a crime and could result in imprisonment for those who break the law. Victims of the violation can also seek civil remedies in court to stop infringing behavior or to recover damages for any losses.
There are many options for remedying intellectual property infringement. This depends on the type of intellectual property rights that were violated, the severity of the damage, and the legal remedies the victims choose to pursue.
These remedies include:
Cease and desist letter
You can send a cease and desist letter to anyone who uses your intellectual property in violation of your permission. The letter informs the person who is using your intellectual property of their intent to use it without your permission and asks them not to do so again.
This cease and desist letter can help you avoid unnecessary delays and costs associated with formal proceedings for IP infringement.
Reaching an agreement
Instead of going to court to enforce an IPR infringement, you might consider negotiating with the infringing parties. For example, you might consider licensing your intellectual property to them (i.e. allowing the infringing parties to benefit from some rights in exchange for a fee).
It is possible to also contemplate mortgaging, selling, marketing, transferring your intellectual property, or entering into a coexistence agreement. In this case, the parties involved agree not to trade on the same or similar markets using identical or similar trademarks.
Mediation is an option if you are unable to reach an agreement with the infringing side.
Mediation is a form of alternative dispute resolution that involves an independent mediator. The mediator aids in the communication between disputing parties with the goal of reaching a resolution.
Most intellectual property disputes can be resolved through mediation, including those involving infringements of trademarks and copyright.
Injunctions are the most common remedy against all IPR infringements. Injunctions are court orders that order named individuals not to do certain acts (eg, using IPR owners’ intellectual property).
Injunctions may be either ‘perpetual’ or ‘interim. Interim injunctions can be granted in an emergency situation to stop a party from infringing acts during the proceedings. A court may grant perpetual injunctions as to the last relief, which prohibits the unauthorized use of IPR.
Injunction violations can lead to fines or even imprisonment.
Profits and damages
The IPR owner might be entitled to compensation if a profit was made due to the IPR infringement. These damages can be awarded by the courts in the form of either damages or an accounting of profits. The IPR owner has the option of either one or both but can only choose one.
Damages typically cover the cost of damage to the IPR owner. An account of profits covers any profits made by the infringing party as a result.
In cases where damages are awarded to an IPR owner, a calculation of the loss of profit is made.
An account of profits is a way to compensate an IPR owner for any loss they suffered due to the infringement. An account of profits calculates the profit made by the infringing parties as a result. An account of profits is a sum that is awarded to the IPR owner in order to restore them to the same position as they were in if the infringement had not occurred.
Costs are awarded
A court order that the infringer must pay the other party’s legal costs is known as an award of costs. A court order can award costs for either the entire amount or a percentage.
Delivery and/or destruction of infringing articles
Although there is no right to order the destruction or delivery of infringing materials and/or items used in making them, courts can make such an order if the court finds that the infringement has been proven. The courts will usually grant this relief in addition to an order.
If an order is placed for delivery of these items, it means that the infringing person must deliver all infringing products to the IPR owner and, if necessary, any items used in making the infringing products.
If an order is issued for the destruction of these items, it means that the infringing parties must destroy all infringing objects and, where necessary, any items used in making the infringing products.
These steps will ensure that the infringing party can no longer use infringing products.