June 18th, 2021
June 18th, 2021
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5 - 1 vote
Intellectual property, or "IP," is everywhere you look. In fact, these days, much of a business's worth is in its intellectual property. IP is contained within the movies and television shows we watch, the brands we love to buy, and the devices we love to use.
What about your own intellectual property? Often, individuals and small businesses alike develop their own IP. Individuals that make money on the internet, such as influencers, create IP in their photos, videos, and brand names. Small businesses do the same: their IP is in the products or services they sell, their names or logos, and the materials they put out for advertising.
IP is also labor-intensive: it takes dedicated care and thought to develop. It can take years to grow and monetize. That's why it is especially frustrating when someone uses your IP without your permission - this is called intellectual property infringement.
Unfortunately, intellectual property infringement all too common in this day and age. The internet makes it very easy to infringe intellectual property belonging to others.
In this guide, we'll discuss the precise steps you can take if someone is infringing on your intellectual property.
Please be advised nothing in this guide constitutes legal advice and everything here should be taken as informational only.
There are four main types of intellectual property in the United States. Usually, only the first two, copyright and trademark, are relevant to most people. We'll briefly discuss each type of IP below.
Copyrights exist in all different types of art. When most of us think of copyrights, we think of music, movies, songs, paintings, and photographs. A copyright is literally the right to copy - it protects you so that you can prevent other people from copying your art!
A copyright can be registered with the U.S. government, at the Copyright Office, but it does not have to be. It is a good idea to register to get the most protection for your copyright, however - you won't be able to sue in federal court without a registration.
Copyrights can be thought of as the intellectual property that governs art.
A trademark is a brand name, logo, or slogan that a business uses in commerce when they are selling goods or services. All of your favorite brand names have likely filed federal trademarks with government, at the United States Patent and Trademark Office, or USPTO.
If a copyright is the right to prevent others from copying your art, a trademark is the right to prevent others from using your brand name, logo, or slogan from representing their own goods or services being sold in commerce. In other words, if you started a brand for fast food called "Bob's Burgers," and registered it with the USPTO, you would be able to prevent other fast-food restaurants from using the name "Bob's Burgers."
Trademarks can be thought of as the intellectual property that governs brands.
Most people will never deal with a patent in their lifetime. Patents govern inventions and they are just like copyrights and trademarks in that their main purpose is to allow the owner of the patent the exclusive right to use it.
Just like trademarks, patent filings and registrations are handled by the USPTO.
A trade secret is a unique type of IP because it is not registered anywhere. A trade secret maintains protection by just being kept secret. Famous examples of trade secrets include the recipe for Kentucky Fried Chicken and the recipe for Coca Cola. The businesses keep these recipes protected by simply not telling anyone and guarding them closely.
Final takeaway: There are four main types of intellectual property, but most people will only deal with their own copyrights and trademarks.
Unfortunately, due to the internet, intellectual property infringement is quite common. Here we'll discuss a few examples of IP infringement that happen every day.
Although sharing is the most common practice on all social media platforms, the truth is that many people are infringing on other people's copyrights when they share on social media.
In fact, anytime you share something that is the creative work of someone else without their permission, you are infringing on a copyright. Therefore, you may find that someone else has posted a creative work of yours on their social media without your permission, requiring action.
Sometimes, commercial and personal websites will do a simple Google image search of what they want and take any photo that comes up in the search for themselves. Bloggers are guilty of this, but so are business websites belonging to digital companies.
You may find that a website you didn't authorize has taken a work of yours and used it without permission.
Offline, sometimes businesses are guilty of using other people's intellectual property in their advertisements. This could be in a magazine advertisement or a billboard or anything in between.
If someone has used a work of art belonging to you in an advertisement, you'll need to ensure they stop.
Occasionally, people will use others' trademarks on products. This happens a lot online, because there are several websites that allow users to upload a graphic for a t-shirt, coffee mug, pen, and other products like that.
If you've found your trademark on a website like this, you may need to request the material be removed from both the website operator and the individual user.
Final takeaway: Intellectual property infringement can happen anywhere - online or off. It is important to protect your IP as soon as you find out about a possible infringement.
Copyright infringements are handled in a very specific way, because there is a federal law that governs their protection online (discussed below).
If the website is one that aggregates content that other people post, like Google or Youtube, they might have what is called a DMCA Policy. DMCA stands for Digital Millennium Copyright Act, and it is a federal law that makes it so that the website can take down the infringing material once they receive a notice (and not get sued themselves). Before you do anything, check if the website has a DMCA Policy. This will usually be in the same area as their Terms and Conditions or Privacy Policy.
If they do have a DMCA Policy, draft and send a simple DMCA Notice. This contains all of the information the website will need to take down the material.
If they don't have a DMCA Policy, send a simple Copyright Infringement Notice. This would be similar to a DMCA Notice, but not make reference, specifically, to the federal law.
If you'd like to send a friendlier communication at first, you can send a Content Removal Request instead of a Notice. The end result is similar - you are asking for the material to be taken down - but it can be less intrusive. If you would like to have an image taken down, instead of written content, you can use a more specific Image Removal Request.
You are not required to send notices before you hire an attorney or decide to litigate against someone for violating your copyright, but it isn't a bad idea, because even if you do decide to sue, you can show that you tried to amicably resolve the issue before court. If your material is still up, you may wish to hire an attorney. The attorney will likely send a Cease and Desist letter (which is something you can do on your own, as well), and may follow it up with a lawsuit.
Final takeaway: Since copyrights are specifically protected from online infringement in part due to the DMCA, it's best to follow the steps on this list when you notice an infringement of your copyright online.
There is no federal law governing the request to remove a trademark, like there is for copyright. Therefore, the first option is to send a Content Removal Request. If you would simply like them to take down your trademark, and it is not being used extensively, this may be a good choice.
In all likelihood, the use of your trademark will be broad. With a copyright, an infringement may mean that just one photo is posted. With a trademark, an infringement may mean that it is being used in conjunction with the sale of hundreds of products. A Cease and Desist might be a better option for trademark infringement, because it makes it clear that you mean business and are ready to start a lawsuit if the infringement does not stop.
Unfortunately, trademark infringements often end up in litigation. This is because trademarks are often wrapped up closely with the value of the brand. If someone is infringing your trademark, you may already be losing money because of it. At this point, you may wish to hire an attorney to go after the person or business infringing your mark in federal court.
Final takeaway: Since there is no DMCA for trademark law, you'll need to proceed as you see fit.
Since there are no laws governing the process for handling infringements offline, it's best to undertake the standard procedure that most intellectual property attorneys do. Namely: start with a Cease and Desist letter. The letter can contain a demand for money, it can take a simple removal request, or it can contain a combination of the two (or anything else you wish to happen). Often, these types of letters are enough to get the infringer's attention, even if they don't always result in the infringement being stopped right away.
If your Cease and Desist doesn't work, you're likely looking at litigation. Although litigation is a long process, if you're intellectual property is important and commercially valuable, litigation is really the only process for ensuring the infringer stops (if they haven't already).
In this case, you will need to hire an experienced intellectual property litigator in your state.
Final takeaway: The process of going after an infringer offline isn't as clear cut, but starting with a Cease and Desist and considering an attorney's help are the best things you can do.
Finding out that your intellectual property is being infringed is always extremely stressful. As discussed in this guide, intellectual property is among the most valuable assets that an individual or business can possess.
By following the steps on this list, you'll be in a great position to make sure you can protect the intellectual property you've worked so hard to develop.
About the Author: Anjali Nowakowski is a Legal Templates Programmer at Wonder.Legal and is based in the U.S.A.