What To Do if Someone Steals Your Intellectual Property
Understanding how to handle theft of intellectual propertyBy Canaan Suitt, J.D. | Last updated on January 26, 2023
Use these links to jump to different sections:
- What is Intellectual Property?
- What To Do if Your Intellectual Property Rights Have Been Infringed
- Questions for an Intellectual Property Attorney
When you think of theft, your mind might go to 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 as 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 New York intellectual property attorney William Samuels.
“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,” says Samuels. “Or [IP theft] can be taking an innovation that’s protected 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 many individuals’ and businesses’ most valuable assets.
This article will cover your options if someone has infringed your intellectual property rights and steps to take to resolve the issue.
What is Intellectual Property?
Intellectual property refers to the legal rights that someone has to their creations, inventions, or brands.
Both individuals and businesses may have intellectual property rights, and intellectual property law (IP law) generally aims to protect these rights.
In the United States, IP law is generally divided into three main categories:
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.
The U.S. Constitution empowers Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Under this clause, Congress first enacted a copyright law in 1790. Congress has significantly updated copyright law on several occasions since then.
The most substantial update was with the Copyright Act of 1976, along with its various amendments (the most recent being in 2020).
According to the U.S. Copyright Office, copyright protects original works of authorship as soon as they have been fixed in a tangible medium.
So, simply having an original idea isn’t copyrightable. However, if you were to express your original ideas in a book, the book you write would be copyrightable. By writing a book, you would have fixed your ideas in a tangible medium.
It’s important to note copyright protection automatically arises when you create a tangible work. So, if you sit down and write a poem, that poem is automatically copyrighted material.
However, to enforce or litigate your copyrights, it’s wise to register your creative work with the U.S. Copyright Office.
Copyright covers a wide range of creative works, including:
Additionally, the Digital Millennium Copyright Act (DMCA) is a federal law that protects owners of digital property from infringement. Digital property includes websites, IP addresses, 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 rights to the work only the owner has without permission.
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.
Copyright protection lasts longer for some other types of works, depending on the nature of the authorship and when it was created.
When a work outlasts copyright protection, it passes into the public domain.
As with copyright, the U.S. Constitution authorizes Congress to enact statutes granting patents to inventors for the purpose of encouraging useful inventions and development.
A patent gives the inventor of a work the exclusive right to make, sell, or use the invention for a certain period of time.
The requirements to patent an invention are that the invention is:
When an invention meets the criteria for a patent, the United States Patent and Trademark Office (USPTO) will grant a patent to the inventor.
Examples of patentable inventions include:
- Designs for machines, medical devices, etc.
- Computer software
Patent infringement occurs when someone uses a patented invention without the inventor’s permission.
Trademarks are everywhere and familiar in everyday life. For example, 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 about the goods or services they purchase.
Like copyright, 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 United States Patent and Trademark Office for legal protection and to put others on notice that you own the trademark.
Say you don’t officially register your trademark. Then, someone in another state who doesn’t know about your trademark comes along and uses the exact phrase or logo as you do.
This other party registers its trademark. They have beaten you to registration and can now use the trademark anywhere in the country. 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.
What To Do if Your Intellectual Property Rights Have Been Infringed
If your intellectual property rights have been infringed, there are a few steps you can take to address the problem, says Samuels.
“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.”
One possibility for resolving issues relatively quickly would be through alternative dispute resolution (ADR). “Mediation or arbitration can help get parties to discuss any challenges or issues in their case,” he 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.”
However, “failing [a settlement], you would then escalate the matter to potentially a lawsuit.”
So, if facing IP infringement:
- Write a cease and desist letter (if the IP is digital, you can issue a takedown notice for the infringing material)
- Consider ADR mechanisms to settle the matter out of court
- Sue for intellectual property infringement in federal court
In any legal action, Samuels strongly recommends getting an intellectual property attorney.
Questions for an Intellectual Property Attorney
Many IP attorneys provide free case reviews for potential clients. These meetings let you get legal advice and decide if the attorney or law firm meets your needs.
To get the most out of a consultation, ask informed questions such as:
- What are your attorney’s fees and billing options?
- What are my IP rights?
- What type of IP do I have?
- Should I sue for IP theft?
- Are there alternatives to a lawsuit?
- How likely is a settlement?
Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship.
Look for an intellectual property lawyer in the Super Lawyers directory for legal help.
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