For many businesses, intellectual property can be a major asset which increases business value and market potential. A number of inventors and entrepreneurs believe that their job is done once they secure a patent, trademark or copyright. However, securing the rights is only the beginning. In some ways, having rights and not enforcing them is like not having them at all. Owners should monitor whether third parties are infringing their rights and, if so, take action to stop them.
Prevent, Detect and Stop Infringement of Your IP Rights
Here are some tips for preventing, detecting and stopping intellectual property infringement.
Make your rights known
It is important to make your rights clear to competitors to discourage infringement in the first place. Using notices or markings to indicate patent, trademark, design or copyright ownership can deter infringement because competitors will be put on notice that you have exclusive rights and that you are willing to enforce them.
There are a number of ways to visually identify intellectual property rights. The word “patent” followed by the patent number is used for patented articles, and “patent pending” can be used in cases where an application has been filed but not yet granted.
For trademarks, the “®” symbol should be used when the trademark in question has been officially registered in the particular country or region where it is being used. For unregistered trademarks, the “™” symbol signifies ownership.
For copyright, the “©” symbol followed by the name of the copyright owner and the year of first publication is commonly used.
Make your intellectual property traceable
Marking your intellectual property in a unique and traceable way will allow you to detect if it is ever used or copied without your permission. Depending on the type of asset in question, there are different ways this can be done. For copyrighted materials, such as photographs and videos, a watermark can be placed on copies to highlight ownership and trace infringement if it occurs. Audial watermarks also exist for copyrighted audial works, which can be traced at specific frequencies if necessary.
Make it difficult for others to infringe
You can use technology to prevent others from accessing, using and copying your protected material. Using technological protection measures, like digital locks, can make it harder for others to infringe.
Monitor competitor activities
Check out new products and services advertised by competitors to see if any of them are using your intellectual property. If you are unsure about whether a competitor’s product is infringing, you might consider purchasing it or having someone else purchase it for you so that you do not tip off the potential infringer that you are investigating their activities. You can also attempt to catch infringement early at events such as industry trade shows, and, for patentable products, technical publications that discuss newly developed products.
Further, keep tabs on new applications filed for intellectual property rights in the key jurisdictions in which you do business. If you think a proposed trademark would be confusingly similar to your own trademark or trade name, you may be able to oppose it before it is allowed and registered. If you think that a patent application describes an invention that is an obvious variation on your own, you may be able to provide prior art or file a protest in the patent office of the jurisdiction concerned before a patent is allowed and granted.
Fight for your rights
If you have discovered that your intellectual property is being unlawfully used by competitors, taking action immediately is key.
The first step is to understand the scope of your rights and determine if there are any legal defences or exceptions that may make the potential infringer’s use permissible.
Once you determine that you do have enforceable rights that are being infringed, you must decide what you want and how to get it. If you just want the infringement to stop, then you may consider notifying the infringer of your rights and asking them to stop. This often takes the form of a cease and desist letter. In circumstances where the infringer ignores your letter or responds that they are not infringing, then you may need to proceed to litigation to seek an injunction. If you want monetary compensation for the infringements, you can either ask for a license fee or a settlement amount. If your request is refused or ignored, then you may need to litigate in Court to obtain compensation.
The enforcement process can become complex so it may be best to get a lawyer involved at the outset when you first detect or suspect infringement to determine whether you have a valid infringement claim and to come up with an enforcement strategy.
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