Intellectual property is vital to the success of many businesses in today’s market. Whether your business leverages a vital patent to be successful, depends on the force of a copyright, or relies on trademarks and domains to remain distinctive, intellectual property rights must be enforced in order to keep your company’s competitive edge.
Given how central IP can be to your business, unauthorized use of your IP or infringement of your IP rights by a competitor or other third party can be devastating. That’s why companies work hard with IP lawyers to keep their intellectual property protected through patents, copyrights, trademarks, trade secrets, NDAs and other contractual protections before ever releasing products to the public. In some cases, simply filing for protection, though, isn’t sufficient -- to maintain certain IP rights, you must also take affirmative steps to stop third parties from infringing on your IP rights, including working with a lawyer to stop the infringement. If you are looking for an IP attorney to help you keep your intellectual property safe from IP infringement, Priori can connect you with vetted, hand-selected options on-demand.
About IP Infringement
If you obtain a patent, trademark or copyright, you are granted certain exclusive IP rights for the timeframe during which the IP protection is active. This generally includes making, using, selling, or offering to sell a patented invention, reproducing, publishing, printing, displaying, or profiting from a creative work, or otherwise utilizing a protected piece of intellectual property for profit. Any third party that utilizes IP subject to such protections without authorization, or uses your IP beyond the scope for which you have authorized their use, is said to be infringing your IP. In such situations, you are generally able to take action to enforce your IP rights in order to prevent such third party infringement.
What Constitutes Infringement?
Of course, establishing exactly what does and does not constitute infringement can be tricky. While a direct copy of your invention or an unauthorized release of your book would obviously be infringement, most cases are not so clear-cut. One test used in the United States to assess IP infringement is whether the second product is “substantially similar” to the extent that a person could confuse the two versions of the product.
For example, patent infringement could include anything from using an invention without permission to selling a “different" product that does the same task in the same way as the patented invention. Copyright infringement includes both plagiarism and unauthorized performance of the works of others (plays, movies, etc.). Even licensed IP can be used in a way that is considered infringement. For example, if a licensee uses the IP in a way that is outside the scope of the license (i.e. using a trademark outside the permitted geographical region or sublicensing the IP to a third party without authorization), that may be considered IP infringement. Given that infringement can arise from a wide range of practices and that assessing infringement is significantly context-dependent, consulting a lawyer can be immensely helpful in determining whether a business practice constitutes infringement.
What to Do When Your IP Is Infringed Upon
If a third party is behaving in ways that infringe your IP, it is often important to take action in order to safeguard your IP. A lawyer can help you draft a cease and desist letter. If that doesn’t produce results, a lawyer can help you seek an injunction such that a court would formally order the third party to stop infringing your IP rights. Finally, a lawyer can help you seek damages or reimbursement for the infringement.
What to Do When You Are Accused of Infringement
Because IP infringement can be so damaging to the patent, trademark or copyright holder, the penalties for infringing on another person’s IP can be severe. Accordingly, if a third party has claimed that you or your company is infringing your IP, consulting a lawyer quickly can help you assess your options and, ideally, avoid significant monetary damages or onerous injunctions.
Though each situation is different, in general, companies can respond to an accusation of IP infringement in the following ways:
Prove you are not infringing or defend against such accusations in court;
Petition to have the patent, trademark, or copyright made invalid;
Stop using the invention and pay the owner damages; or
Obtain a license from the IP holder to continue to use the invention.
Which option will be best depends on the individual circumstances of the case.
The cost of addressing IP infringement can vary dramatically depending on your needs. Through the Priori network, hourly rates for lawyers with experience handling IP infringement start around $175 per hour and range up to $450 per hour. In order to get a better sense of cost for your particular situation, put in a request to schedule a complimentary consultation and free price quote from one of our lawyers.
How is IP infringement possible if I am simply using another company’s product?
Sometimes companies are informed that they are infringing upon a patent because of their use of a device purchased from a third party. While this is often a tactic of patent trolls to try to get as much money as possible, this type of infringement can be valid, since unauthorized use is still illegal, no matter where the IP is sourced.