Everyone is aware that laws exist to protect the property of individuals, businesses and other organizations. If someone steals your car, or breaks into your home taking computers and jewelry, then they are breaking the law and could end up with prison sentences and other penalties if caught and convicted. All types of property are protected by laws that prohibit theft, burglary, fraud and embezzlement, but there are some categories of property that are harder to categorize and even harder to protect from improper and unpermitted use. This type of property is known as intellectual property. The use of someone else’s intellectual property without consent can lead to significant penalties, including paying fines, damages, legal fees and in some cases where willful infringement is involved criminal charges.
What is meant by intellectual property?
Intellectual property (IP) consists of the things that have been created by an individual’s or collective intellect. They include things like new inventions, designs, artwork, musical compositions, dramatic productions, brand names and logos. Intellectual property is intangible as it is not a physical entity, but is still valuable to its creator.
Categories of intellectual property
There are four main categories of intellectual property recognized by the U.S. federal government. Typically, IP rights are protected by federal law rather than Massachusetts state legislation, so IP disputes may involve the use of a federal court rather than a state district court.
These categories are:
- copyright;
- trademarks;
- trade secrets; and
- patents.
Copyright
Copyright protection can be applied for when someone has created something which can be presented in a tangible format. This might include such things as writing, music, artwork, films and plays. Someone who writes a novel or a non-fiction textbook, creates a new song, a painting, or other form of artwork, produces a new film or theatrical play would understandably expect to believe that what they have created was personal property and had value that should not be appropriated by someone else. Copyright must be applied for and unless copyright of a particular creative work is registered it means that it is not protected by federal law.
Trademarks
Trademarks can help identify a particular business to potential customers. Trademarks include brand names and images like banners and logos. For example, Kentucky Fried Chicken’s brand name is recognized around the world as is its distinctive colored logo. Apple has its partly eaten apple logo to accompany its brand name to help it differentiate itself from other tech companies.
Trade secrets
Trade secrets can provide a business with a competitive edge over other businesses. Protection of trade secrets may be vital to a business’s financial status. Trade secrets are varied and can include such things as recipes (e.g. the closely guarded secret of what is in Coca-Cola), instructions and production methods.
Patents
Whenever an individual or business creates a new device, design or machine with potential commercial application and value, then that may result in an application for a patent. A patent protects the patent holder from the unauthorized use of the creation or a copy of the creation for another individual’s personal gain.
IP disputes and protection for intellectual property
IP disputes may be due to willful disregard for existing protection accorded to intellectual property or may be accidental. Where there is no exiting protection, the likelihood is that there will be more capacity for disputes, which can be financially damaging and ultimately frustrating to the individual IP owner. Copyright protection can be sought by applying by registering copyright with the U.S. Copyright Office. Without creative works being registered with this office means that technically the creator does not possess copyright for these items. Likewise, trademarks and patents can be protected by applying for registration with the U.S. Patents and Trademarks Office (USPTO).
Infringement of IP rights
As long as intellectual property has been protected by registration with the appropriate government authority, the owner has recourse to federal law as it applies to IP infringements in the event of a dispute. Disputes typically arise when IP owners become aware that their property has been misappropriated, i.e. used or reproduced without permission. An example of IP infringement is when a logo or brand name is used for a similar product as the one for which the original logo or brand was created to promote. When a book, song or music is copied and marketed for commercial gain without regard for copyright, then this is a clear infringement of the copyright owner’s rights.
Federal IP infringement laws are designed to prevent IP infringement. Willful infringement can lead to severe penalties being imposed, such as fines, a demand for payment of financial losses to the owner of the IP and, in extreme cases where willful infringement has been proven to have taken place, criminal conviction, penalties which may include imprisonment.
Steps that can be taken when there is an IP dispute
The owner of intellectual property rights which have been infringed is most likely to go to seek legal advice from an attorney with experience in intellectual property law and disputes. The case against the infringer hinges on proving that:
- the property had been accorded protection by a government authority such as the U.S. Copyright Office or U.S. Patents and Trademarks Office.
- A clear infringement has taken place, i.e. there is clear evidence that the owner’s property has been used, reproduced, sold or in any way misappropriated without permission from the owner.
Typically, the IP owner will initially issue a cease and desist letter sent to the infringer demanding that they stop their infringement. If the infringement continues, then the owner may be forced to file a lawsuit against the infringer. This can be a lengthy and costly legal process, but the alternative – allowing the infringement to continue unabated, may be even more financially damaging and destructive to the business.
When a lawsuit is filed, the extent of the damages sought will be outlined. This may include fines which may be imposed because IP laws have been breached and compensation for losses caused to the owner due to the infringement.
Business litigation attorneys who have been hired to help an IP owner in a dispute will typically seek to persuade the plaintiff to settle the dispute out of court. This may involve agreement to pay damages demanded and ceasing the act of infringement. If the case for the lawsuit is convincing, but the plaintiff is adamant that infringement has not taken place, then the attorney may suggest taking the case to court. Legal fees including attorney’s fees and court costs would then be added to the amount demanded from the plaintiff.
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