Demystifying IP Infringement: Answers To The Top 10 FAQ's

Intellectual property – such as copyrighted material, trademarks, and patents – can include some of the most valuable assets for business owners...
United States Intellectual Property
To print this article, all you need is to be registered or login on

Intellectual property – such as copyrighted material, trademarks, and patents – can include some of the most valuable assets for business owners, but rights related to intellectual property are also difficult to protect, and even more challenging to enforce.

If you own a business, or have been accused of committing intellectual property infringement, you need to know your rights. Below are 10 of the most frequently asked questions about intellectual property infringement!

1- What is intellectual property infringement?

Infringement is the violation of somebody's (or some entity's) intellectual property rights. Trade secrets, patents, trademarks, and copyrights are some examples of intellectual property. Copyright infringement, for example, occurs when a person (or entity), without permission, uses, reproduces or distributes somebody else's work; a patent infringement can occur when someone or some entity uses a patented innovation illegally.

Intellectual property infringement is detrimental to creativity, as it disregards the creative rights of an owner. A person or entity that infringes upon another's intellectual property can be sued and ordered to pay damages and/or stop the infringement immediately (an injunction).

2- What legal actions can be taken against intellectual property infringement?

It is illegal to use someone else's registered intellectual property without their permission. If you do this, you could face legal consequences. If someone uses your intellectual property without permission, the infringement could be resolved by issuing a cease-and-desist letter to the infringer telling the infringer that they need to stop using the protected intellectual property.

The next step after sending a cease-and-desist letter is to confiscate the protected property. After preventing the violator from further using the intellectual property, the rightful owner can sue the infringer and seek compensation for damages.

Anyone who infringes on intellectual property can also face criminal charges. Criminal charges of intellectual property rights infringement may result in a fine or prison.

Alternative methods, such as arbitration and mediation, could be used to resolve the conflict if both parties agree. If not, the case will be brought to court, and a judge or jury will determine the outcome.

3- How can I enforce my intellectual property rights?

Enforcement of intellectual property rights is difficult, but there are steps you can take to protect yourself.

  • To obtain official documentation of your ownership and defend your rights in court against others, you should first register with the USPTO.
  • Second, you should monitor the marketplace for infringements of your intellectual property.
  • If you find infringement, schedule a consultation with an intellectual property attorney who can advise you about what steps you can take to address the infringement, including sending a cease-and-desist letter to the infringer and potentially taking the infringer to court.

With aggressive and proactive measures, you can assert your interests to the highest practical extent.

4- How long does it take to resolve an intellectual property infringement case?

An intellectual property infringement matter can take as little as a few weeks, a few months, or even as long as several years to be resolved. Multiple factors can contribute to the length of a case, including:

  • the level of complexity
  • the number of court filings submitted by each party
  • the amount of evidence required to support a claim
  • whether the matter actually goes to court or settles by alternative dispute resolution
  • how clogged the court's docket is
  • the number of expert witnesses
  • and if the case goes through the court process
  • whether or not there are appeals
  • and more.

5- What evidence is needed to prove intellectual property infringement?

Evidence of copyright, trademark, or patent infringement can be established in various ways, depending on the specific legal property in question and the facts of the case.

  • In copyright law, proof of infringement often involves presenting the original work and any unauthorized copies, as well as demonstrating the infringer's access to the protected work and any similarities between the protected and infringing works.
  • In a trademark infringement case, evidence may include proof of ownership of the registered brand and proof of customer confusion or deception.
  • In a patent infringement case, the evidence would typically consist of the patented invention and evidence of the accused party's unauthorized use or manufacture.

To prove infringement of a copyright, trademark, or patent, it is necessary to demonstrate ownership of the intellectual property and provide evidence of the infringement. Additionally, proof of damages or injury may also be required.

6- Can a cease and desist letter help stop intellectual property infringement?

Yes! Cease and desist letters are designed to stop IP infringement. A cease and desist letter is a legal warning from an IP owner to an infringer that their unauthorized use of IP must stop. It tells the infringer exactly what acts must cease immediately, and the consequences of continuing the infringement. It almost always requires the infringer to pay the IP owner money for the infringement.

When properly drafted, a cease and desist letter tells the infringer that the IP owner is serious about getting their infringement to stop. The IP owner tells the infringer that the next step, after the infringement has stopped, is that the IP owner will sue if the infringement continues. A cease and desist letter deters infringement, and often stops the infringement quickly, and protects the IP owner's rights.

7- How can I avoid unintentional intellectual property infringement?

People and companies need to do all they can to avoid getting caught up in an inadvertent infringement of IP rights that can result in a lawsuit. First, do your research. You need to ensure that the IP you want to use is not copyrighted and that it has not been trademarked.

Moreover, keeping records of your research and where you got your information demonstrates good faith in your research and where you got the information. Lastly, if you are using someone else's IP, credit the inventor and owner of that IP. This prevents you from claiming IP as your own and avoids any charges of infringing on someone's IP.

8- What role do intellectual property lawyers play in infringement cases?

Intellectual property attorneys advocate on their clients' behalf in infringement proceedings. Their professional duty is to protect their clients' IP rights and interests from infringement. Intellectual property attorneys investigate their clients' claims and gather evidence in support of such claims in an infringement proceeding. When it is In their clients best interests, they will try to settle the case out of court, but if necessary, they will initiate and prosecute lawsuits. Intellectual property attorneys can defend clients accused of using someone else's creative assets.

9- Can a company be held liable for the actions of its employees committed in the course of employment in cases of IP infringement?

Employers can be held liable for employee infringement through "vicarious liability." If an employee infringes on the copyright of a third person, the company might be held liable for the acts of its employees. They might try to mitigate their liability by proving that it made efforts to prevent the act or that the person committed the infringement outside the scope of his or her job. Companies can further protect themselves by having procedures for training and monitoring their employees with respect to intellectual property rights.

10- What are some common defenses used in intellectual property infringement lawsuits?

There are a number of different defenses available in cases of intellectual property infringement.

  • The idea of fair use, which allows users to make restricted uses of copyrighted material without permission in situations that are instances of criticism, commentary, or education, is one of the most frequently used defenses in intellectual property infringement cases.
  • The defendant might assert that his work is not so similar to that of the protected work.
  • The defendant might argue intellectual property first sale, which is the theory that allows defendants to resell or distribute otherwise protected works.
  • The defendant might assert a defense that intellectual property infringement was accidental or inadvertent.
  • The defendant might assert a lack of intellectual property rights or waiver of intellectual property rights.
  • And more.....

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

See More Popular Content From

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More