Putting in the work is not an easy task. As a result, everyone wants recognition and some control over their intellectual property (IP). Society recognizes this, and specific IP rights have been created to protect creators. Despite this, there will always be instances where another party will either steal your intellectual creation or infringe upon your intellectual property rights. 

If this ever happens to you, you need to be meticulous and decisive in claiming what belongs to you. This post gives you the insightful help you need in handling intellectual property infringement.  

What are Intellectual Property Rights?

Like tangible properties such as cars, houses, shoes, etc., your artwork, business models, authorship of a book, document, research, music, video, designs, and other intangibles are equally protected under the law. The point is anything created by an individual, including intangible concepts and ideas, can be legally protected from theft and reproduction without permission of the owner in line with intellectual property rights laws. Intellectual property rights protection can manifest through patents, trademarks, copyright, industrial design rights, and trade secrets. 

Thus, the goal of intellectual property rights is to offer needed protection to you from those who might steal or use them without permission for profitable gains.  

What is an Intellectual Property Infringement? 

When someone uses your words, the content of your book, or any other publication without duly giving credit to you as the author or creator, an intellectual property infringement has occurred. If this happens, you can seek legal aid to limit and stop the damage caused by the infringement and equally get compensated for any loss already incurred. 

For this to happen, however, you must be sure if you have rights to the intellectual property in that country. For example, patents and trademarks are territorial and must be registered in each country where protection is sought. 

How to Identify Intellectual Property Infringement

The first step to handling an IP infringement is to discover the infringement, albeit accurately. The goal is to find the wrongful use, the extent of use to quantify damages, and the entity responsible for the infringement. 

An excellent place to search is through a basic search. Copyright, trademark, and patent information are all public records that anyone can access. That is, you can search for various types of intellectual property using the appropriate databases. Interestingly, these databases are often available online to make such searches even more effortless.  

It is possible that you do not find an infringement by search if you focus on your keywords alone. This is because the person who infringed upon your work could have the property listed under different words that do not match your search. Therefore, you should broaden your search terms and expand your parameters. 

Apart from this, you can also check through inventions or published applications, starting from the United States Patent and Trademark Office (USPTO). Of course, you can also do this online.  

In addition, paying attention to your competitors is another viable means of detecting if your intellectual property has been used without authorization. By monitoring your competition, you can catch any infringement activities early on before the issue becomes more extensive and more costly to handle. 

How to Enforce Intellectual Property Rights

You can enforce your intellectual property rights informally or formally (dispute resolution or alternative dispute resolution). The first place to start is to explore informal options and then gradually move through the stages of dispute resolution from ADR to full-blown litigation.  

In any case, it is vital that before any dispute arises, you have already taken concrete actions towards protecting the intellectual property in question.  

An initial way of protecting intellectual property and creating ease of enforcement in the event of a breach is by registering it appropriately with relevant authorities under the applicable laws. For example, you could register the IPs as a trademark, copyrights, patents, among others. 

Another way to protect your IPs is to create confidentiality and non-disclosure agreements with employees and partners to legally bind them from revealing the enterprise’s intellectual property. 

However, suppose after several preventive measures have been taken, the intellectual property was still infringed upon. In that case, a more stringent means of enforcement can then be employed. 

First, the person in breach can be informally approached to withdraw from such an act, especially if such person is a close associate or a known person to you. This informal approach will save you the cost associated with the formal process and equally aid you in preserving the close relationship with the violator. Another advantage of this step is to check if the relationship you have with an infringer affects your right in any way. 

If the informal approach does not work, recourse will have to be made to the formal legal means. So, yes, the first point of call is by instituting an action in court. To do this successfully, you should typically follow the following steps. 

Pre-Action Letter

This involves having your lawyer write the infringer of your rights to sternly request them to stop infringing as the infringement is unlawful and hurting your rights. Your lawyer would typically issue a copyright takedown request. Copyright takedown requests can be a cost-effective way to stop infringement in some cases, especially those involving small infringers. The requests, however, also alert infringers that a company is aware of their presence, which could prompt them to move, change names, or otherwise alter their operations in ways that could inhibit a company’s ability to gather evidence. 

In some instances, though, the infringer complies with the terms of the letter and desists. Still, if the infringer insists instead of ceasing, then you would have to explore other means.  

Arbitration

Due to IP litigation’s costly and time-consuming nature, parties in an intellectual property dispute can elect to settle the dispute through alternative dispute resolution – Arbitration or Mediation.  

In a mediation procedure, a neutral intermediary, the mediator, helps the parties to reach a mutually satisfactory settlement. Any settlement is recorded in an enforceable contract. In an arbitration procedure, all parties agree to submit the dispute to one or more arbitrators, who then make a binding decision on the dispute. 

There are also international, specialized IP bodies that have created platforms to resolve a dispute. For example, the World Intellectual Property Organization (WIPO) Arbitration and Mediation Center is a neutral, international, and non-profit dispute resolution provider that offers time- and cost-efficient alternative dispute resolution options. 

Private Programs

You could enforce your rights through private programs. For example, Amazon has designed a process to combat patent infringement. The program is called Utility Patent Neutral Evaluation Procedure (UPNEP). Under this program, a company that believes certain products for sale on the Amazon Marketplace infringe its patents can request an evaluation by depositing money. Suppose the seller does not dispute the accusation. In that case, Amazon removes the infringing products from the marketplace and refunds the deposit to the patent owner. However, if the seller decides to fight the claim, they also deposit some funds. Amazon then assigns a lawyer with patent expertise to resolve the dispute. The patent owner submits an opening brief, and the merchant files a response. Then the patent owner may submit a reply. The lawyer reviews the submissions and decides whether the listing should be removed or maintained. The winner gets its money back, and the loser’s money gets paid to the lawyer. There is no discovery, and no appeal or request for reconsideration. 

Litigation

Once you are ready to proceed with litigation, you can commence a patent, copyright, or trademark infringement proceeding in court and ask for an order that the alleged infringer stops their activities through an order of the court known as an “injunction.”  

An injunction is an equitable remedy that will legally and authoritatively instruct the infringer to stop perpetrating the infringement. An injunction is an equitable remedy, which means that the court has the discretion to grant it or not, depending on the circumstances of each case. Permanent injunctions are commonly granted to intellectual property owners who have proven in court that their rights have been infringed.
Another remedy available from legal action is requesting damages regarding the loss you have incurred due to the infringement. However, it should be noted that instituting legal actions might take some time before the court gives a verdict on the suit. 

Takeaway

Determining the best way to protect intellectual property can be confusing and complex. However, an intellectual property attorney can help ensure that the best possible protection is secured for your work.