What Happens If Someone Uses My IP Without Permission?
The first step in protecting valuable intellectual property rights is to ensure you do, in fact, own such rights. Since patent, copyright, trademark and trade secret rights arise differently, you should first ensure that your use is enforceable against what you have identified as an infringing use. The next step is to determine what options are available to you and which of those options are within your budget and appetite for conflict. Enforcing IP rights can take many forms, ranging from cease and desist letters, to UDRP proceedings or arbitration, proceedings with the Trademark Trial and Appeal Board, or federal lawsuits.
* * *
The “big five” of intellectual property law are patents, trademarks, copyrights, trade secrets, and domain name registrations. However, IP law may also govern other rights such as the rights of publicity, trade dress, telephone numbers, and other rights. The first step in enforcing your rights is to determine which of these you own—and whether you have taken the proper steps to secure your rights in the first place. For example, trademark rights arise out of use and can be enforced against a subsequent user so long as you have use in commerce as a trademark (meaning, as a means of identifying the source of goods or services). Patents, on the other hand, are not protectable at common-law and must be secured through the United States Patent and Trademark Office to be enforceable. Similarly, while a copyright may be enforced to a degree at common-law (you can make someone stop using your copyrighted content), you cannot obtain an award of damages arising out of infringement unless you have secured copyright registration with the U.S. Copyright Office.
The next step is to understand that not all IP use is infringing use and determine whether the third-party use you are objecting to truly qualifies as infringement. This will necessarily involve evaluation of issues like non-infringing use (i.e., use of your mark or a similar mark on goods or services that bear no relation to your own goods or services), non-trademark use (use that does not indicate origin or that refers to your own goods or services), or copyright fair use (such as for criticism, comment, news reporting, teaching or scholarship).
Finally, you will need to evaluate the various options for enforcing your rights and determine your budget and appetite for conflict and expense. Cease and desist letters are often used to enforce IP rights as they are both economical and do not require extensive commitment. There are instances, however, where the infringing user fails to comply with a cease and desist and the IP owner must then decide whether to escalate to a more aggressive approach – such as a federal lawsuit or even a proceeding before the USPTO.
For additional information, see Intellectual Property Infringement Matters and Disputes and Protecting Intellectual Property.
Klemchuk PLLC is a leading IP law firm based in Dallas, Texas, focusing on litigation, anti-counterfeiting, trademarks, patents, and business law. Our experienced attorneys assist clients in safeguarding innovation and expanding market share through strategic investments in intellectual property.
This article is provided for informational purposes only and does not constitute legal advice. For guidance on specific legal matters under federal, state, or local laws, please consult with our IP Lawyers.
© 2024 Klemchuk PLLC | Explore our services