You have to be vigilant about enforcing your intellectual property rights. Nobody else will take action on your behalf. In the meantime, you could be losing a considerable amount of money if you do nothing. Not only should you closely monitor what someone may be doing with your intellectual property, but you should not hesitate to do something about it if they are acting improperly.
Contact an Attorney As Soon As Possible
An initial important step to take is to contact an intellectual property attorney to help you determine what legal actions are available to you. You should not try to act alone because you could make mistakes that could compromise your legal claims. Your goals are both to make the infringement stop and to be compensated for the harm that you have already suffered. An intellectual property attorney knows the legal process and how to act effectively on your behalf.
Take Immediate Action to Make the Situation Clear to the Other Party
One of your first steps may be to notify the infringing party that their conduct is wrongful, and that you may take legal action against them. Commonly, the party who believes their intellectual property rights are being infringed would send a cease-and-desist letter to the infringing party telling them to stop what they are doing. If you send such a letter, your letter would lay out certain demands and make it clear that if they are not met you may sue the infringing party. At the very minimum, it would put the infringing party on notice that you believe they are doing something wrong and it would give them an opportunity to stop.
You Can and Should File a Lawsuit if Necessary
If the other party continues to wrongfully use your intellectual property, you have the legal right to take your case to court. Federal intellectual property law gives you the right to sue the infringing party directly in court. Nobody else will on your behalf—you must be the one to do it.
If you are taking your case to court, you do not need to prove that the defendant acted intentionally. Someone can inadvertently violate your intellectual property rights. If someone does not know about your rights, the cease-and-desist letter may be enough to put them on notice that they are doing something wrong. If someone has intentionally infringed upon your trademark or copyright, they could be ordered to pay a higher amount of damages and even be subject to criminal prosecution.
Defenses to an Intellectual Property Lawsuit
You would still need to overcome an opposing party’s defenses to your accusations. These defenses could include:
- Their work is not substantially similar to yours
- Their use of your intellectual property constitutes “fair use”
- You did not have the right to intellectual property protection in the first place
- You, as the patent owner, are illegally using your patent to inhibit competition
- You did not take the appropriate steps to protect your intellectual property, or you waived your rights
Damages and Remedies in an Intellectual Property Case
In addition to being necessary to protect what you have worked so hard for, intellectual property cases could also be worth a considerable amount of money.
Here are some of the available remedies in an intellectual property case:
- Your direct damages from the infringement
- Profits that you would have earned had someone not violated your rights
- Disgorgement, to take the illegal profits that someone else made off your work
In general, the infringing party would need to put you in the same position as you would have been in had they not acted illegally. However, if they were found to have acted willfully, or with deliberate indifference, they can be ordered in certain cases to pay treble (that is, three times the amount) damages.
Plaintiffs will often ask for exemplary and punitive damages in an intellectual property lawsuit. The court will consider each case separately, based on its individual facts. When you have sent a cease-and-desist letter, and the other party still persists in violating your legal rights, that may be one factor the court takes into consideration.
Injunctions and Other Extraordinary Relief in an Intellectual Property Case
Further, you could ask that the defendant be ordered to deliver up the infringing work and anything used to make it. This could prevent any further violation of your intellectual property rights.
In addition to monetary damages, you may also be seeking to put a stop to the wrongful conduct. In general, courts prefer to award monetary damages in lawsuits. However, when money is insufficient to address the harm, the court may also order some type of equitable remedy.
In an intellectual property case, a common type of equitable remedy is an injunction that would put a stop to the behavior. A court may grant a temporary injunction at the outset of a case to prohibit certain conduct while the lawsuit is pending. Otherwise, you could suffer irreparable harm in the months or years that it takes to have your intellectual property lawsuit decided. If you win in court, the judge or jury could issue a permanent injunction to enjoin such behavior forever. In some cases, the court could both award you damages and grant an injunction.
Your Lawsuit May Be Lengthy and Difficult
Intellectual property trials generally tend to be complex, which means they can become expensive, even if you end up winning. If you have a patent case, you can assume the litigation would involve heavy scientific or other such evidence and expert witness testimony. Trademark infringement cases could involve social science that measures public perceptions. Although you have a legal right to a trial, it may be in your best interest to find a way to resolve the dispute short of a trial. However, you should not be afraid to vindicate your rights.
Licensing Agreements to Resolve Intellectual Property Disputes
One potential outcome to an intellectual property dispute is a licensing agreement. When put on notice that they are illegally using your intellectual property, a potential defendant may try to find a way out of the predicament while still being able to use your ideas. A licensing agreement would pay you some type of royalty for the use of your work. These agreements can be customized based on the circumstances. A pragmatic and experienced litigator is always looking for a potential way to resolve each case so that the client achieves their goals and gets the best possible outcome. A licensing agreement is a potential compromise that can pay you for your work and keep you out of court.
Potential Remedies Under the Texas Trade Secrets Act
Even if you cannot enforce your intellectual property rights under federal law, you may still have options under Texas state law. Texas has a Trade Secrets Act that protects certain business information from misappropriation. Even if you do not have a copyright, patent, or trademark, certain processes and knowledge could be protected against misuse by the Trade Secrets Act.
The Act defines a trade secret as “all forms and types of information, including business, scientific, technical, economic, or engineering information,” as well as any “formula, design, prototype, pattern, plan,” or similar item. You must have taken reasonable steps to have kept the information secret, and the information must derive “independent economic value” from being secret.
Contact a Houston Intellectual Property Attorney Today
It is crucial that you consult with a commercial litigation attorney as soon as you suspect that someone else has infringed upon your rights. The longer you wait, the more damage that can be done. The trial attorneys at Berg & Plummer can help you take strong legal action to protect your intellectual property rights.