Maybe you have paid for a service that scours the internet for your trademarked terms or your patented products. Maybe you see a local news report of a local musician and realize they’re playing songs you wrote. Perhaps a friend sent you a link to a website that is using your art or without permission. No matter the circumstance in which you found out, learning that someone else is taking your intellectual property without your permission is a stressful and frustrating time. The most important thing to do is immediately contact the attorneys of Garcia-Zamor.
Do not contact the infringing party directly.
It is important to gather all of the available facts and provide them to the attorneys of Garcia-Zamor so that a preliminary legal analysis and strategy can be developed. Determining whether it is appropriate to send a cease and desist letter or even contact the suspected infringer can depend on numerous considerations and facts, many of which may not be known for a while.
Considerations for Dealing with a Potential Trademark Infringer
It is important to determine if the party imitating your brand has been: (1) using the similar brand prior to your earliest use; (2) using the brand with similar goods and services; (3) using the similar brand in a generally continuous fashion in commerce; and (4) using the similar brand prior to the filing of any of your federal trademark applications. Sometimes the answers to questions can be obtained online. In some cases, it is important for Garcia-Zamor to hire an investigator to prepare a use report. Once relevant facts are reviewed the next step is to come up with a strategy as to how best protect your branding.
Considerations for Dealing with a Potential Patent Infringer
It is important to determine if the party offering your patent products: (1) has been selling similar products since prior to your earliest priority date; (2) is selling a product which credibly infringes at least one claim of your patent; (3) has an affirmative defense – such as laches or patent exhaustion; and (4) has related patents which may be used in a countersuit against your products. Part of the necessary fact finding by Garcia-Zamor involves obtaining at least two copies of any infringing products to allow for direct inspection of the infringing device. Once relevant facts are reviewed the next step is to come up with a strategy as to how best protect your patented product.
Considerations for Dealing with a Potential Copyright Infringer
It is important to determine if the party copying your artistic creation: (1) is engaging in fair use; (2) is actually copying the original expression of your art; (3) is only copying the unprotected idea that generally applies to your art; (4) has had access to your artistic creation; (5) has independently created the similar artwork; and (5) is profiting based on their use of your artistic creation. Once relevant facts are determined and reviewed the next step is to come up with a strategy as to how best protect your artistic creation.
If it is determined that your content was permissible “Fair Use”, you may not have any grounds to stop the use by another. Fair Use generally means that content was borrowed for educational purposes (such as reporting on a scientific finding or an important anthropological discovery) or only a small section was used. If someone has published a quote from your book in their blog post about literature with attribution, that could fall under Fair Use and the court system may decide that they did not infringe upon your rights.
Be Careful When Signing Publication Agreements – Online or Otherwise
Other reasons that your rights may not actually have been violated include cases where you published your work through a website and they gained ownership of your material or you uploaded content with an open license.
It is Important to Protect Your Intellectual Property
Once the attorneys of Garcia-Zamor have determined that your rights are violated, we can take aggressive legal action to protect your intellectual property. While it may be tempting to avoid pursuing enforcement actions and possibly even litigation, ignoring the infringement can have terrible results for you and your business.
Every time someone infringes upon your intellectual property rights, your branding becomes weaker. Protecting your rights doesn’t have to immediately turn into a court case and there are other methods to try first before getting the courts involved.
Garcia-Zamor can help you go over your options and take the next step. Have your records regarding your intellectual property and any information about the offender organized for our reference and call today to get the assistance you need. Rest assured that you can have peace of mind and the rights to your own intellectual property.
