What To Do if Someone Steals Your Intellectual Property

When you think of theft, you probably think of someone taking your wallet or some tangible asset, like a watch or car. If someone takes your physical property, that’s obviously theft. However, your ideas, creations, and inventions can also be stolen through intellectual property infringement, and it’s not always easy to know when this type of theft has occurred.

“Intellectual property theft basically involves third parties who co-opt the brand, the technology, or the products that have intellectual property right protections,” says Bill Samuels, an intellectual property attorney at Cole Frieman & Mallon in New York City.

“Intellectual property theft can be actual infringement, when someone uses a protected innovation without an agreement or compensation to the party that first developed the innovation. Or IP theft can involve taking a protected innovation and rebuilding or reverse-engineering it. An example would be someone in the United States who develops a product and gets a patent on it, and then a third party goes and takes that innovation and starts using it or selling it in a foreign market or even here in the U.S.,” says Samuels.

Having intellectual property stolen or used without permission can result in significant financial problems for the creator or inventor. Intellectual property is among the most valuable assets for individuals and businesses. This article will cover your options if someone has infringed on your intellectual property rights and steps to take to resolve the issue.

Identifying Intellectual Property Theft

Intellectual property refers to the legal rights that someone has to their creations, inventions, or brands. Both individuals and businesses may hold intellectual property rights.

In the United States, IP law is generally divided into three main categories:

1. Copyrights
2. Patents
3. Trademarks

To know if your intellectual property has been stolen or infringed, you first need to understand what kind of intellectual property you have. Let’s look at these three types of intellectual property in a little more depth.

1. Copyright Infringement

Copyright law covers a wide range of creative works, including books, poetry, plays, movies, music, paintings, photos, and architecture. Additionally, the Digital Millennium Copyright Act (DMCA) is a federal law that protects digital IP rights. Digital property includes websites, blogs, video games, computer programs, and apps.

Copyright owners have certain exclusive rights to their intellectual property, including:

• Right to sell or distribute the work
• Right to perform or display the work
• Right to create derivative works
• Transfer ownership of the work or grant a license for its use

Copyright infringement is any unauthorized use or misappropriation of the copyrighted work. In other words, infringement is exercising, without permission, rights to the work that only the owner has.

Under current law, works created and fixed in a tangible medium on or after January 1, 1978, enjoy copyright protection for the life of the author plus 70 years. The duration of copyright protection depends on the nature of the authorship and when the work was created. When a work outlasts copyright protection, it passes into the public domain.

2. Patent Infringement

As with copyright, the U.S. Constitution authorizes Congress to enact statutes granting patents to inventors to encourage the development of useful inventions.

A patent gives the inventor of a work the exclusive right to make, sell, or use the invention for a certain period of time. Inventors have the right to choose between registering their work and keeping it as a trade secret. A patent provides greater legal protection, but the invention is publicly published. A trade secret is just that, a secret, but it does not grant the same ‘right to exclude’ provided by patents, nor does it protect against independent discovery or reverse engineering.

The requirements to patent an invention are that the invention fall within a patentable category (process, machine, manufacture, or composition of matter) and be useful, novel, and non-obvious. When an invention meets these criteria, the United States Patent and Trademark Office (USPTO) will grant a patent to the inventor.

Examples of patentable inventions include formulas, machine designs, medical devices, and computer software. Patent infringement occurs when someone uses a patented invention without the inventor’s permission.

3. Trademark Infringement

Trademarks are ubiquitous and familiar in everyday life. Amazon’s smiling arrow, Nike’s “Just Do It,” and McDonald’s golden arches are all trademarks. Trademarks include symbols, words, and phrases used to identify and distinguish a company’s goods or services from others.

By distinguishing brands, trademarks help consumers have confidence in the goods or services they purchase. Like copyrighted material, which arises as soon as you fix an idea in tangible form, you don’t have to officially register a trademark to have one. A trademark can arise by actually using a symbol or phrase in connection with your goods or services.

However, it’s wise to register your trademark with the USPTO for legal protection and to put others on notice that you own the trademark. For example, say you don’t officially register your trademark. Someone in another state who doesn’t know about your trademark comes along and uses the exact phrase or logo for their business. This other party registers the trademark. They have beaten you to the registration and can now use the trademark nationwide. Since you didn’t register first, you can only use the trademark in the limited region where you initially used it.

Trademark infringement occurs when someone uses or copies your trademark without permission.

How To Fight IP Infringement

Samuels says that if your intellectual property rights have been infringed, there are a few steps you can take to address the problem.

Gather Evidence To Build Your IP Infringement Case

The first step is to gather your own evidence. Locate copyright and patent registration certificates. Collect trademark registration and proof of first use. Gather drafts, source files, design notes, and prototypes. Any documentation with dates that can verify the creation process is crucial. All of this will be important for proving you were first.

Next, gather all evidence that documents the infringing use. Create a list of URLs and archived web pages. You may need to purchase a sample of the counterfeit or unauthorized goods. Screenshot advertisements and social media postings that use your intellectual property. If possible, copy the source code and technical documentation. If the infringement is ongoing, continue to document it with dates. This will be useful for proving systematic infringement and the extent of your damages.

The next step is to calculate damages. They could include lost sales, evidence of customer confusion, a decline in web traffic, or other brand metrics. If possible, collect the infringer’s sales metrics related to the infringing IP. It’s smart to consult an intellectual property lawyer at this stage. They can advise on the most helpful evidence to prove an infringement case. Their guidance will ensure you don’t unknowingly violate any laws while gathering evidence.

Write a Cease and Desist Letter

“The first step would be to write a cease-and-desist letter that puts the other party on notice of the client or owner’s intellectual property rights.” Having sent a cease-and-desist letter, “matters can hopefully be resolved between the parties.”

Consider Alternative Dispute Mechanisms To Settle Out of Court

One way to resolve issues quickly is through alternative dispute resolution (ADR). “Mediation or arbitration can help get parties to discuss any challenges or issues in their case,” Samuels says.

“Ideally — and I say this because most parties want to be doing business and not necessarily litigating — ideally, ADR would lead to some kind of settlement.”

Sue for Intellectual Property Infringement in Federal Court

Failing a settlement, you should then escalate the matter to potentially filing a lawsuit, Samuels says. He adds that in any legal action, you should strongly consider getting an intellectual property attorney on your side.

Copyright Infringement vs. Contract Law Protections

Copyright law only applies if ideas are written or put into a tangible form. What if you just shared an idea with someone, who then used it?

“An idea submission claim says, ‘You didn’t rip off my script; you ripped off my idea,'” explains California entertainment litigator-turned-mediator Bruce Isaacs. “Ideas aren’t protectable under copyright, but they may be protectable in California under contract. But such cases are very difficult to win.”

While idea-submission claims are governed by state law, they are often filed concurrently, and the court will consolidate them in federal court.

“The court, especially in literary property cases, will almost always grant a motion to dismiss or summary judgment in favor of the defendant, which is the studio,” says Isaacs. “It’s really hard for a plaintiff to win one of these cases. So, the copyright claim usually goes away. The court will rule on the idea submission claim at the same time, and they almost always punt on the state law idea submission claim by saying, ‘With no copyright claim available any longer, we at the federal court don’t have jurisdiction,’ so they send it down to a state court.”

Idea submission claims are difficult because of the burden of proof. “If you think you wrote Terminator and you think your script or treatment has been used, you must show that you or your people had access to that script or treatment and that they are substantially similar,” Isaacs says.

In a copyright claim, the court must assess the similarities and determine whether they constitute protectable expression. If it’s not a new or fleshed-out idea, then the law won’t protect your pitched idea.

Potential Remedies and Damages

Plaintiffs who are successful in their infringement claim have several possible remedies available to them:

• Injunctive relief is a court order that requires the defendant to do or refrain from doing something. Typically, the court will order the defendant to stop using the infringing material.
• Monetary damages may include actual damages, such as lost profits. It could also include statutory damages, which are fixed amounts set by law. In some cases, they may be able to claim attorney’s fees.

A patent infringement claim could result in damages for reasonable lost royalty profits, lost actual profits, and enhanced damages for willful infringement. Trademark infringement claims can include damages for the cost of corrective advertising.

Why You Need an IP Attorney

Even a great idea can be lost without proper copyright protections for what you created. Consider contacting a law firm and seeking legal advice from a reputable and experienced intellectual property attorney to ensure your original work is protected ahead of time — or if you’re considering legal action for copyright infringement or breach of contract.