The Ugly Side of Intellectual Property – Infringement!

by Mark Malek

A downturn in the economy has resulted in a significant rise in the development of new technologies and new business models.  Many of these new technologies and business models are born of creative people that are looking for new ways to make a living.  A number of these creative people had either been laid off or were business owners that were looking for alternative sources of income.  Many of them were successful in their new endeavors, while others failed.  Those who were successful in their new endeavors sought to protect their intellectual property in a number of various ways.  For example, inventors filed patent applications, artists filed copyright applications, and others who came up with new brands for high quality products filed trademark applications.

Along with the rise in intellectual property filings has come the rise of infringement.  The infringement is not necessarily directed to the newly filed intellectual property.  Many times, the infringement has been of well-established technologies, copyrights and trademarks.  Unfortunately, the owners of the intellectual property that is being infringed find themselves in an unenviable position of needing to take legal action to put an end to the infringement.  The owners of the intellectual property have generally worked for many years at developing their intellectual property and have gone through much expense to do so.  Turning a blind eye to infringement weakens that intellectual property.

If you find yourself in the position of having your intellectual property rights trampled upon, then there are some steps that you likely want to consider.  The first step in attempting to stop an infringement of intellectual property is to simply put the infringer on notice of your rights in the intellectual property and demanding that they stop their infringing activities.  Many times, such a notice will result in stopping the infringement.  In some cases, however, you may be required to enter into some negotiations.  For example, and only in appropriate cases, you may enter into an agreement to “phase out” the infringing matter.  In other cases, you may even enter into a licensing agreement with the infringer.  Sometimes, the notice may be ignored, or the infringer may respond by contending that they do not infringe.  If, after further investigation, you still believe that infringing activity continues to be an issue, one option that remains is litigation.  Although undesirable and costly, litigation may be the only way to stop infringing activity.

As you can imagine, there has been a rise in intellectual property litigation as less creative people have tried to generate revenue on the proverbial intellectual property backs of others.  There have been many recent examples of these types of behavior.  One example is cybersquatting.  In this case, the infringer attempts to extort a trademark owner by holding a domain name hostage.  Another is creating derivative works on someone’s copyrights and then attempting to profit off of those works.  Yet another example is making an identical product as that of the intellectual property holder that bears an identical name.  It is sad to report that these are not hypothetical situations.  These are examples of cases that I have handled in just the past six months.

If you are an intellectual property holder, do as much as you can to secure your intellectual property.  This can be achieved by marking your intellectual property with notices that inform the general public of your rights.  If you believe you are a victim of infringement, try to seek the advice of an attorney whose practice is focused on intellectual property.  Attorneys that focus their practice in this specialized field are generally able to recognize the appropriate intellectual property issues, and provide you the proper advice on dealing with an infringement.  The same advice goes for those accused of infringement.  If you are actually infringing, defending the action based on bad legal advice will end up being far more costly than simply swallowing your pride and stopping the infringing activity.