Businesses and entrepreneurs alike are often faced with a difficult dilemma: Another individual or entity is improperly using my copyright or trademark protected work, what steps can I take to protect my rights? And, should I handle this myself, or am I better served if I hire a lawyer to help?
If you or your business are involved in such a predicament, it is often unclear how to proceed and what options may be available. However, fear no more, as the Intellectual Property attorneys at Plakas Mannos are here to provide you guidance through this difficult situation.
Identifying & Preserving Critical Evidence for Your Copyright/Trademark Infringement Case
Sometimes the initial reaction to discovering infringement is to try to handle it yourself by immediately alerting the infringer of the wrongdoing. However, this can be counterproductive. Our experienced legal team understands that it is important to immediately preserve evidence of the copyright or trademark infringement. For example, if the infringement is occurring via an online medium, it is important to take screenshots of the webpage or post that is improperly utilizing the protected work or mark so that the unauthorized use of such work or mark can be clearly demonstrated, and before the infringer removes or deletes in the information.
When electronic evidence is involved, it is important to act fast. Or, if the infringement is occurring via a physical medium, it is important to obtain a copy of the infringing work, including any and all evidence indicating the source from which the infringing work originated, such as an order invoice. When our experienced intellectual property team is retained, we quickly perform an exhaustive search to identify any unauthorized use. At times, this requires the assistance of a forensic expert. Our firm has worked with many of the top forensic evidence firms in the field, and knows what questions to ask and what steps to take to ensure that critical evidence is preserved.
Next, you should collect any and all evidence demonstrating your copyright and/or trademark right. A copyright is created whenever an original work of authorship is fixed in a tangible form. This may include paintings, sound recordings, books, etc. Conversely, trademark rights are established whenever the mark is first used in connection with the business and/or good or service it represents. This may include a brand name, company logo, etc. Thus, for a copyright, it is important to preserve the original copy of the work, as well as any evidence as to when the work became fixed in a tangible form. For a trademark, it is important to preserve any evidence demonstrating that the mark was used in connection with selling a good, providing a service, advertising a brand, etc., including when such use first occurred. Furthermore, if formal registration of the copyright or trademark has been obtained, it is crucial to maintain all documents that evidence such registration with the applicable entity, which would be either the U.S. Copyright Office or the U.S. Patent and Trademark Office.
Demanding to Stop Infringing with Cease-and-Desist Letter & DMCA Takedown Notice
Once all of this evidence is secured and preserved, our lawyers will oftentimes send a formal notice to the individual or entity that is misappropriating your copyright or trademark that they must immediately cease such activity or face legal action. This cease-and-desist letter essentially acts as a warning to the infringing party that they are engaging in unlawful activity as a result of misappropriation of a copyright or trademark that you maintain. Sending such a letter helps to eliminate any argument that the infringing party was unaware of their unlawful activity.
Furthermore, in today’s digital age, given that most copyright infringement occurs electronically, an additional step that may be utilized prior to the initiation of a copyright infringement lawsuit is referred to as a DMCA Takedown. In 1998, Congress passed the Digital Millennium Copyright Act (“DMCA”). Under the DMCA, a copyright owner may send a document referred to as a DMCA Takedown Notice to an internet service provider (“ISP”) or online service provider (“OSP”). The DMCA Takedown Notice acts to inform the ISP or OSP of the allegedly infringing material. Upon receipt of said Notice, the ISP or OSP must block access to and/or remove the infringing material or otherwise lose any possible immunity they may be entitled to, exposing them to potential liability for copyright infringement. Thus, for the purposes of online copyright infringement only, the DMCA Takedown process serves as another important tool in combatting copyright infringement.
When Necessary, Our Intellectual Property Lawyers Can Initiate Litigation
Finally, should none of the above measures work, you, as rightful owner of the copyright and/or trademark, maintain essentially two options: (1) initiate a lawsuit against the infringing party for copyright and/or trademark infringement, depending on which is applicable; or (2) permit the infringing party to continue its use of the copyright or trademark via use of a license for a prescribed fee. Under option one, a lawsuit is initiated in state or federal court in which damages are sought for the losses experienced due to the infringing party’s unlawful activity. Under option two, you could negotiate with the infringing party and permit their use of your copyright and/or trademark via the issuance of a license. Such license would be issued in exchange for an agreed upon fee that may or may not be recurring in nature. Furthermore, the license could be limited to only a specified time period or only for a specified purpose. The extent of such a license would be up to you.
Only the Best Will Do When You’re Facing Copyright or Trademark Infringement
Unlike some lawyer spokespeople you may see on TV or on billboards, our intellectual property and commercial litigation lawyers are trial-hardened lawyers with experience in both federal and state courtrooms. We have experience both prosecuting and defending infringement actions in a wide variety of industries, including in the restaurant and hospitality industry, retail sales, construction, marketing and advertising, and medical equipment and supplies.
Overall, the process in combatting copyright and/or trademark infringement can often be complex. When your life’s work is on the line, only the best will do. Contact Plakas Mannos at 330-455-6112 to see how we can help with your trademark or copyright infringement case.
About the Authors
Gary Corroto is a partner and attorney who handles cases in a variety of practice areas, including intellectual property litigation, commercial transactions, mergers and acquisitions, commercial litigation, and others. Hunter Miller is an associate attorney focusing on intellectual property litigation, estate planning and probate, commercial litigation, mergers and acquisitions, and other practice areas.
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