Intellectual Property

Trademark infringement occurs when someone uses a similar mark on related goods or services in a way likely to cause consumer confusion about the source or affiliation of those goods/services. Signs of infringement include similar marks appearing in your industry, customers expressing confusion, or discovering counterfeit products. Copyright infringement happens when someone reproduces, distributes, displays, performs, or creates derivative works from your original material without permission. This might involve finding unauthorized copies of your work online, discovering plagiarized content, or noticing your images used without attribution. If you suspect infringement, document everything: save screenshots, purchase infringing products as evidence, and record dates and details of discovery. For registered IP, you can pursue stronger remedies including statutory damages, attorney’s fees, and potentially triple damages for willful trademark infringement. Enforcement options typically begin with cease-and-desist letters demanding the infringement stop, followed by negotiation. If that fails, you can file a lawsuit seeking injunctions to stop the infringing activity, monetary damages for harm suffered, and in some cases, seizure of infringing goods. For online infringement, additional remedies include DMCA takedown notices for copyright violations and domain name disputes through UDRP proceedings. Early consultation with an intellectual property attorney is crucial to evaluate your case strength and develop an enforcement strategy tailored to your specific situation and business goals.

Intellectual property infringement lawsuits offer several types of monetary recovery. For trademark infringement, you may recover the defendant’s profits from the infringement, damages for actual harm to your business (lost sales, market confusion, reputation damage), and in exceptional cases involving willful infringement, treble (triple) damages and attorney’s fees. Copyright infringement allows recovery of either actual damages plus the infringer’s profits, or statutory damages ranging from $750 to $30,000 per work infringed, which can increase to $150,000 per work for willful infringement. Patent infringement typically provides either lost profits (what you would have earned without the infringement) or reasonable royalties (what a licensee would have paid), with the possibility of treble damages for willful infringement. Trade secret misappropriation cases can recover actual losses, unjust enrichment the defendant received, or reasonable royalties, with potential double damages under the Defend Trade Secrets Act for willful and malicious violations. Beyond monetary damages, intellectual property cases often involve injunctive relief—court orders preventing further infringement—which can be equally valuable by stopping market harm. Courts may also order the destruction of infringing items, corrective advertising to address consumer confusion, or in counterfeiting cases, seizure of illicit goods. The specific damages available depend on factors including whether your IP is registered, the infringement’s willfulness, and your ability to prove economic harm, making early consultation with an intellectual property attorney essential to maximizing your potential recovery.

International intellectual property protection requires a strategic approach that accounts for the territorial nature of IP rights. For trademark protection, options include filing directly in specific countries of interest, using the Madrid Protocol to file in multiple countries simultaneously based on a U.S. application, or in Europe, filing an EU trademark covering all member states. Patent protection can be pursued through direct filings in each country, or more efficiently through the Patent Cooperation Treaty (PCT), which provides a streamlined application process for 150+ countries, though ultimately requiring conversion to national applications. Copyright enjoys automatic protection in most countries under the Berne Convention, though registration in key markets may provide additional benefits for enforcement. For trade secrets, the TRIPS Agreement requires member countries to provide protection, though security measures and contract provisions remain essential as enforcement varies significantly between jurisdictions. When doing business internationally, protective measures should include: conducting thorough IP clearance searches before entering new markets; registering rights before doing business in a country, as many jurisdictions follow a first-to-file system; implementing confidentiality agreements specifically enforceable in relevant jurisdictions; working with local counsel familiar with regional enforcement procedures; and considering manufacturing and distribution strategies that limit exposure in high-risk markets. Timing is crucial, as international filing deadlines can affect priority rights, particularly for patents where public disclosure may bar protection in some countries. An international protection strategy should balance comprehensive coverage against budget constraints by prioritizing countries based on manufacturing locations, major markets, and regions with high infringement risk, creating a tailored approach that maximizes protection for your most valuable intellectual assets.

Trademark, copyright, and patent litigation involve distinct legal standards, procedures, and remedies reflecting the different nature of these intellectual property rights. Trademark litigation focuses on consumer confusion, requiring plaintiffs to prove they own valid trademark rights and that the defendant’s use creates a likelihood of confusion about product source or affiliation. Trademark cases often involve survey evidence to demonstrate actual confusion and may include claims for counterfeiting, dilution, or false advertising. Copyright litigation addresses unauthorized copying, requiring proof of copyright ownership and showing the defendant had access to the protected work and created a substantially similar copy without permission. Unlike trademark cases, independent creation is a valid defense in copyright litigation, and fair use exceptions allow limited use of copyrighted materials for purposes like criticism, comment, or education. Patent litigation is typically the most complex and technical, requiring detailed analysis of patent claims and how the accused product or process implements each element of those claims. Patent cases frequently involve Markman hearings where judges determine the precise meaning of patent claim terms before comparison to the accused product, and often require extensive expert testimony on technical matters. The litigation processes also differ: trademark and copyright cases can be filed once rights exist (with copyright registration required before filing), while patent litigation requires more extensive pre-filing investigation due to technical complexity. Damages also vary significantly, with trademark cases focusing on lost profits, corrective advertising costs, and the infringer’s profits; copyright cases allowing statutory damages as an alternative to actual damages; and patent cases typically involving reasonable royalties or lost profits calculations. Understanding these differences is crucial when developing enforcement strategies and allocating resources appropriately based on the type of intellectual property at issue.