Intellectual property (IP) refers to the creations of the mind, such as inventions, literary and artistic works, designs, symbols, names, and images used in commerce. The main types of IP are patents (for inventions), trademarks (for branding), copyrights (for literary, artistic, and media works), and trade secrets (for business secrets). IP rights allow creators, or rights holders, to benefit from their own work or investment in a creation.
Intellectual Property Infringement
Intellectual property infringement occurs when a person or company uses, copies, sells, or exploits in some way the IP of another without permission. This can include using a company’s trademark (brand name, logo, etc.) in a way that could cause confusion; copying and distributing copyrighted material, such as music, movies, or books, without permission; or manufacturing and selling a product that’s protected by a patent.
Common Types of Intellectual Property Disputes
Below are some of the most common types of intellectual property disputes:
- Copyright Infringement: This occurs when copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. An example is illegally downloading and distributing music or movies.
- Trademark Infringement: This takes place when one party uses a trademark that’s identical or confusingly similar to a trademark owned by another party in a way that’s likely to cause confusion or deception about the source of the goods or services.
- Patent Infringement: This happens when a third party, without authorization, makes, uses, or sells a patented invention.
- Trade Secret Disputes: This can occur when someone reveals or uses trade secrets of a business without the consent of the owner. This is often seen in employment disputes where a former employee is accused of revealing trade secrets to a new employer.
- IP Licensing Disputes: These disputes typically arise when parties disagree about the terms and conditions of the use of intellectual property, including the scope of the license, the amount of royalties, and the duration of the agreement.
- Domain Name Disputes: These disputes occur when someone registers a domain name that is identical or confusingly similar to an existing trademark. This practice, known as cybersquatting, often involves the registrant profiting from the goodwill associated with the trademark of another entity.
What Are the Penalties for Infringement?
Penalties for infringement include civil and criminal penalties. In general, anyone found liable for civil copyright infringement may be ordered to pay either actual damages or “statutory” damages affixed at not less than $750 and not more than $30,000 per work infringed. For “willful” infringement, a court may award up to $150,000 per work infringed. A court can, at its discretion, also assess costs and attorneys’ fees. For details, see Title 17, United States Code, Sections 504, 505.
Willful copyright infringement can also result in criminal penalties, including imprisonment of up to five years and fines of up to $250,000 per offense.
Damages for Copyright Infringement
Damages are monetary compensation awarded to a plaintiff who has suffered a loss or injury due to the defendant’s unlawful conduct. In copyright cases, there are two types of damages: actual damages and statutory damages.
Actual damages are based on the proven harm or loss suffered by the copyright owner as a result of the infringement. This may include the loss of profits or the amount of license fees that the infringer should have paid for the use of the work.
Statutory damages are fixed amounts that the court can award without requiring proof of actual harm. Statutory damages are available only if the work was registered with the U.S. Copyright Office before the infringement occurred or within three months of publication. The court has the discretion to determine the amount of statutory damages within a range of $750 to $30,000 per work infringed, depending on the circumstances of the case.
If the infringement was willful, the court could increase the statutory damages up to $150,000 per work infringed. If the infringement was innocent, the court could reduce the statutory damages to as low as $200 per work infringed.
Punitive Damages for Copyright Infringement
Punitive damages are additional amounts awarded to a plaintiff to punish or deter the defendant from engaging in similar conduct in the future. Punitive damages are not available in civil copyright cases under federal law. However, some states may allow punitive damages in certain circumstances under their own laws.
How Can I Protect My Intellectual Property?
There are several ways to protect your intellectual property, depending on the type and nature of your creation. Here are some general tips and suggestions:
Register Your IP Rights
The most common and effective way to protect your intellectual property is to register it with the government and obtain legal rights over it. Depending on the type of IP, you may need to apply for different forms of protection, such as:
- Copyrights, which cover works of authorship, such as books, logos, and software;
- Patents, which cover inventions, such as machines, processes, and products;
- Trademarks, which cover words, phrases, symbols, and logos that identify your goods or services;
- Design rights, which cover the appearance or shape of a product or its packaging.
Registration can provide you with exclusive rights to use, license, sell, or sue others who infringe on your IP. Registration can also deter potential infringers from copying your IP or using it without your permission. Registration can also increase the value of your IP and make it easier to prove your ownership in case of a dispute.
To register your IP rights, you will need to follow the procedures and requirements of the relevant authorities in the countries where you want to protect your IP. For example, in the United States, you can register your copyrights with the U.S. Copyright Office, your patents with the U.S. Patent and Trademark Office (USPTO), and your trademarks with the USPTO or the state governments.
Document Your Discoveries
Another way to protect your intellectual property is to document your discoveries and creations as soon as possible. This can help you establish your priority and originality in case someone else claims to have invented or created something similar. Documentation can also help you prepare for registration or litigation if needed.
Documentation can include keeping records of:
- The date and time of your invention or creation;
- The details and specifications of your invention or creation;
- The sketches, drawings, diagrams, or photos of your invention or creation;
- The names and contributions of any co-inventors or co-authors;
- The sources of inspiration or information for your invention or creation;
- The steps and methods you used to develop or test your invention or creation; and
- The results and feedback you obtained from your invention or creation.
Documentation should be clear, accurate, and complete. It should also be stored securely and confidentially. You can use digital tools such as cloud storage, encryption, or blockchain to enhance the security and reliability of your documentation.
Use Digital Rights Management
Digital rights management (DRM) is a technology that allows you to control how your digital content is accessed, used, or distributed by others. DRM can help you protect your intellectual property from unauthorized copying, sharing, or modification. DRM can also help you monetize your intellectual property by enabling you to charge fees for access or usage.
DRM can be applied to various types of digital content, such as:
- E-books;
- Music;
- Videos;
- Software;
- Games;
- Online courses.
DRM can involve using techniques such as:
- Encryption;
- Watermarking;
- Licensing;
- Authentication;
- Tracking.
DRM can be implemented by using software applications, platforms, or services that provide DRM solutions. Some examples are Adobe Digital Editions, Apple FairPlay, Google Widevine, and Microsoft PlayReady.
Opt for Strong Nondisclosure Agreements
A nondisclosure agreement (NDA) is a legal contract that binds the parties involved to keep certain information confidential. An NDA can help you protect your intellectual property from being disclosed, used, or exploited by others without your consent. An NDA can also help you maintain your competitive advantage and prevent others from stealing or copying your ideas.
An NDA can be used when you need to share your intellectual property with others for legitimate purposes, such as:
- Collaboration;
- Partnership;
- Consultation;
- Evaluation;
- Investment;
- Employment.
An NDA should be clear, specific, and enforceable. It should include:
- The definition and scope of the confidential information;
- The purpose and duration of the disclosure;
- The obligations and limitations of the parties;
- The remedies and penalties for breach; and
- The governing law and jurisdiction.
An NDA should be signed by all the parties involved before any disclosure takes place. You should also monitor and verify the compliance of the parties with the NDA terms.
Create Strong Access Credentials
Access credentials are codes or passwords that allow authorized users to access certain information or systems. Creating strong access credentials can help you protect your intellectual property from unauthorized access, use, or theft by others. Access credentials can also help you track and audit the activities of the users who access your intellectual property.
Access credentials should be:
- Unique and complex;
- Changed regularly;
- Stored securely;
- Verified frequently.
You should also limit the number and scope of the users who have access to your intellectual property. You should also educate and train your users on how to use and protect your intellectual property and access credentials.
Hire an IP Lawyer
Hiring an IP lawyer can help you protect your intellectual property in various ways, such as:
- Advising you on the best type and strategy of IP protection for your situation;
- Assisting you with the registration and maintenance of your IP rights;
- Conducting IP audits and searches to identify and evaluate your IP assets and risks;
- Drafting and reviewing IP contracts, such as NDAs, licenses, assignments, and transfers;
- Enforcing and defending your IP rights against infringement or challenges;
- Negotiating and resolving IP disputes or conflicts.
An IP lawyer can also help you stay updated and compliant with the laws and regulations that affect your intellectual property in different countries or regions.
Do I Always Need Permission to Use Someone’s Intellectual Property?
The answer to this question depends on the type and nature of the intellectual property you want to use and the purpose and extent of your use.
In general, you need to get permission from the owner of the IP if:
- The IP is protected by law, such as by copyright, patent, trademark, or design rights.
- Your use of the IP would violate the law or the owner’s rights, such as by copying, reproducing, distributing, modifying, or performing the IP without authorization.
However, there are some exceptions and limitations to the IP laws that may allow you to use someone’s IP without permission in certain situations. For example:
- Under the fair use doctrine of U.S. copyright law, you may use limited portions of a work for purposes such as commentary, criticism, news reporting, education, or research, depending on various factors.
- Under the patent exhaustion doctrine of U.S. patent law, you may use or resell a patented product that you have lawfully purchased or acquired from the patent owner or an authorized seller.
- Under the nominative fair use doctrine of U.S. trademark law, you may use a trademark to refer to or identify the trademark owner or its products or services as long as you do not imply endorsement or affiliation.
To determine whether you need permission to use someone’s IP, you should consider:
- The type and nature of the IP you want to use;
- The purpose and extent of your use;
- The effect of your use on the market or value of the IP; and
- The availability and applicability of any exceptions or limitations to the IP laws.
If you are unsure whether you need permission to use someone’s IP, you should consult an IP lawyer or seek guidance from the relevant authorities.
Do I Need an Intellectual Property Lawyer?
If you want to protect your own IP or use someone else’s IP legally and safely, you may benefit from hiring an intellectual property lawyer. An IP lawyer can help you with various aspects of IP protection and usage, such as:
- Advising you on the best type and strategy of IP protection for your situation;
- Assisting you with the registration and maintenance of your IP rights;
- Conducting IP audits and searches to identify and evaluate your IP assets and risks;
- Drafting and reviewing IP contracts, such as licenses, assignments, transfers, and nondisclosure agreements;
- Enforcing and defending your IP rights against infringement or challenges; and
- Negotiating and resolving IP disputes or conflicts.
An IP lawyer can also help you stay updated and compliant with the laws and regulations that affect your IP in different countries or regions.
If you are looking for an experienced and qualified IP lawyer who can help you with your specific needs, you can use LegalMatch to find one. LegalMatch is a free online service that matches you with pre-screened lawyers in your area.
You can simply fill out a confidential online form describing your legal issue and wait for lawyers to contact you with their proposals. You can then compare their profiles, ratings, reviews, and fees before choosing the best lawyer for your case.
