intellectual property investigation
Have you written a unique article for which you are seeking copyright protection? Perhaps you invented a new way to do something or created a new invention, should you protect your idea with a patent or a trademark?
The answer to all of these questions is that it is in your best interests to do all of the above things, depending on what it is you created.
If someone steals your idea and copies your article or recreates your invention or process it is known as an infringement of your intellectual property rights.
What Should I Do If My Intellectual Property is Infringed On?
To enforce a trademark, it must be registered with the United States Patent Office, without registration of your intellectual property, there is no way to pursue a claim.
Copyrighted material is a bit different. You are not required to register for a copyright to defend against infringement of your written work, photographs or other artwork. But you will need to prove that the intellectual property you claim has been infringed is actually yours.
There is no such thing as the “poor man’s copyright” (PMC). The myth that abounds to this day is that if you mail yourself the item you want to be copyrighted and send it to yourself as a registered letter you can establish a copyright. When delivered, keep it, unopened and in a safe place. The theory behind the myth is that the sealed, dated envelope is proof of your original work. It is not proof of anything – it is a total waste of time and could be a costly error. Register your copyright material and pay the fees required by the government in order to protect your original intellectual property. So far, there has never a copyright case in the United States that has been aided by PMC and, probably, there will never be one.
The paperwork for filing a copyright with the United States Copyright Office is pretty easy and costs only $85.
A trademark is usually a symbol, word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods from one company from those of others.
A service mark is identical to a trademark, except that it identifies and distinguishes the source of a service rather than goods.
Throughout this article, the terms trademark, mark, and service mark are used interchangeably.
There are ways to establish a trademark without filing it with the United States Patent Office (USPTO). However, registering it gives many advantages to you that include:
•“Constructive notice to the public of the registrant’s claim of ownership of the mark;
•A legal presumption of the registrant’s ownership of the mark and the registrant’s exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration;
•The ability to bring an action concerning the mark in federal court;
•The use of the U.S registration as a basis to obtain registration in foreign countries; and
•The ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods.”
If your copyright of trademark has been infringed upon there are a number of things you can do short of a lawsuit that may solve the problem.
Lawsuits Must Be the Last Resort
Statistics show that most copyright and trademark lawsuits never get to court. Attorneys are loath to take a case regarding intellectual property as prosecuting or defending an intellectual property case is very expensive – as much as a quarter of a million dollars or more with a floor of about $100 thousand. But, that is just for initiating a lawsuit – the costs including appeals can run to the millions.
Before You Sue
The Internet creates a situation for theft of IP that is similar to shooting fish in a barrel. There is so much in the way of written IP, art IP, and Trademarks that it is more than China that is stealing American IP. It is also American individuals and companies that engage in this practice.
Following are some tips to take that may make a lawsuit unnecessary.
•Contact the offender – this can be done by you or your lawyer, though your lawyer’s letter may prompt early resolution. Tell them appropriate information about your infringed work.
•The type of infringement such as copyright, trademark or patent.
•A request that they cease and desist using your IP.
Make sure you give the offender a time limit such as 30 days, two weeks or whatever is reasonable.
The Digital Millennium Copyright Act (DMCA) adds protection for IP works that are infringed upon on the Internet. Under this United States law, the owner of the IP can tell an Internet website host that a user is infringing upon protected intellectual property. In that letter, you will demand that the offender’s stolen or misused intellectual property be taken down. Again, it is best to have your lawyer send this letter as it gives more credence to your demand.
Although this is listed as the third step, it can be combined with Step 1 or Step 2 or precede or follow either of the two. This step is to offer a licensing arrangement for which the offending company pays you for the use of your mark or copyright.
If another company is using a trademark that is similar to yours and can confuse the public have your attorney send them a trademark violation letter.
Time to Sue?
Although copyright and trademark issues can be handled in court, your copyright must be registered as does your trademark. If you take the matter to a civil court, you may be eligible to receive:
•An injunction that has the court order the person from continuing the use of your IP. This action may result in the offending company having to remove a product from the marketplace.
•Reimburse you directly for payment of your losses
•All or a portion of the offender’s profits from using your IP
Remember, lawsuits for intellectual property issues are almost never done on a contingency basis. The average amount needed to begin the lawsuit is about $100 thousand and can climb into the millions. Before you act at all, it is best to contact your IP attorney.
Tim O’Rourke is the founder of GIMG.tv
About the author:
Tim O’Rourke is the president of TheGraftonGroup.org a specialized private investigative firm based in Tampa, Florida. As the lead corporate investigator for the firm Tim spends most of his time assisting organization with the protection of their information, due diligence and cyber threats.
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