Someone’s Stealing From Me! Copyright and Trademark Infringement

Copyright and Trademark Infringement: Someone’s Stealing From Me!

You take all the right measures to protect your copyrights and trademarks, but someone is still using your work or logo without your permission!

Most people I speak with tell me that copyright infringement gives them a similar feeling to having personal property stolen.  The human psychology around these cases can mimic the feelings of traditional theft.  Copyright infringement, however, is not a criminal offense; it’s a civil offense. This means the infringer less likely to face jail time barring some extraordinary circumstances.  Instead, they’re likely to face statutory fines and an order to pay damages.

Depending on whether it’s copyright or trademark infringement, the requirements for proof will be different. In either scenario, your ability to recover damages will depend on how well protected your work(s) was initially.

In this post, we’ll cover the basics you should know about copyright and trademark infringement and briefly discuss the legal elements of each.  We’ll also discuss what you’ll need to prove in court, and what legal options you may have.

What is Infringement?

Infringement is the unauthorized use, copying, distribution, or exploitation of someone else’s intellectual property rights.  To exploit simply means to profit or benefit from in some way.

An infringer violates a right that is the exclusive right of the lawful owner.  To the IP owner, there are myriad consequences including lost sales, unfair competition, cost of policing, and a loss of brand or personal reputation.

Copyright Infringement

A copyright owner enjoys an exclusive bundle of rights in his or her original work.  There are eight rights listed under USC Title 17, which is the copyright chapter of the United States legal code.  Copyright infringement occurs whenever someone violates any of the exclusive rights of a copyright owner without first obtaining permission or having a license.

Infringement can take various forms including the unauthorized reproduction or distribution of works, creating a derivative work and performing a work without permission.  To prove infringement, you’ll have to prove ownership as well demonstrate that your rights are being violated.

Proving Copyright Infringement

First, you’ll need to prove you’re the rightful owner of the work being infringed upon.  Proof of ownership can be shown through a valid copyright registration.  If you don’t have a registration, you still may be able to prove ownership through other means such as demonstrating a priority date of creation.

Substantial Similarity

A work may have both protectable and unprotectable elements. The infringement needs to infringe upon a protectable, copyrightable element of your work, something that is unique or original to your work.  This determination is done by assessing the substantial similarities between the original and infringing works.

Unauthorized Use

An infringer may have a valid fair use exception or have acquired a license through a third party.  You’ll have to show that the use is without your permission.

Proving Trademark Infringement

Trademark infringement occurs another mark is likely to cause confusion with your existing trademark.  It’s not necessary that you are selling the same product.  Unlike copyrights, trademark protection protects businesses and brands.  What you’re proving to the court is not that something original was copied, but that the infringement is going to cause confusion to consumers in the marketplace.  Trademarks protect source-identifying logos or designs primarily to avoid this type of consumer confusion.

You must prove the infringing mark is confusingly similar to your brand or dilutes your brand in some way. The point is to protect the integrity of your brand as it relates to the public.

Proving Trademark Infringement

Proving trademark infringement is a different analysis than copyright infringement.

The legal elements needed to prove infringement are as follows:

Ownership

You must prove you have a valid and enforceable trademark which is most easily done through a valid trademark registration but can also include proving you were first to bring your mark to the marketplace.

Likelihood of Confusion:

You must show the infringer’s use of a similar mark is likely to cause confusion among consumers. There are various factors to consider when making the evaluation that often focus on the perception of the competing parks with regard to the buying public.

3. Use in Commerce:

You’ll hear the term “use in commerce” a lot in trademark law because trademark protection involves protecting businesses. You must show the infringer’s use in commerce will have a harmful financial impact on your brand – either in real money or reputation.

If you prove these elements of infringement, a court may award an injunction (in addition to money damages), which is a court order that requires the infringer to immediately stop using the mark.

Comparing Copyright & Trademark Infringement

Other than proving ownership in the work, the elements for proving copyright and trademark infringement are much different.  Remember copyright protects original creative works while trademark protection is for your business and brand.

Engaging in copyright or trademark infringement can have serious consequences.  In addition to court sanctions, courts may be allowed to award up to $150,000 in statutory damages for willful infringement if a work has been properly registered.  Before taking the issue to court, you can consider alternative resolutions like settlement and negotiations.

Conclusion:

Unscrupulous people will always look to take advantage of other people’s intellectual property.  For a lot of people, intellectual property theft seems benign compared to the theft of physical property.  But that’s dangerous thinking!  Stolen IP can have serious consequences.

If you ever have issues and need to stop an infringer, you can email our firm to schedule a consultation at consultation@zalaiplaw.com.