How to Prove Theft of Intellectual Property
Intellectual property refers to specific creations from a person’s mind, such as artistic and literary works, names, designs, symbols, inventions, and even trade secrets. In order to protect trade secrets and other forms of intellectual property, the United States has created several laws aimed at helping people retain the right to prosper from their own creations and ideas.
Common types of intellectual property include:
- Copyrights, such as music, paintings, photographs, poems, and software.
- Trademarks, such as words, phrases, symbols, and designs which separate one product from another.
- Trade secrets, which involve any information that is valuable to a business and is typically unknown to others.
In a copyright infringement suit, you must prove that the defendant has access to your work and that the defendant’s work is “significantly similar” to yours. In a trademark suit, you must prove that the unauthorized use of the trademark will likely result in confusion, deception, as to the source of the goods. In a trade secrets case, you must prove illegal appropriation.
Remember, you need to know exactly what your rights are. For example, trademark holders have the right to stop others from using a trademark that is the same or similar to their own, unless the other party was already using it through legitimate means. Trade secret owners can prevent others from copying, using, or benefiting from the information in any way without consent and have the power to prevent disclosure of information (if the offending party has signed a nondisclosure agreement). Lastly, copyright infringements can include work that is copied, displayed, distributed, reproduced, or used in the production of “derivative works” with the express consent of the original owner.
If you discover that your intellectual property has been stolen or used without your permission, your initial step is to identify the individual or entity and ask them to stop. You or your lawyer can send a “cease and desist letter” requesting the person or company stop using your work. The letter should include the information about the work that has been infringed, the type of infringement, and the action you want taken.
In cases of copyright infringement online, for instance, you have an additional avenue to pursue according to the Digital Millennium Copyright Act (DMCA). The act allows you to send “takedown notices” to the infringer’s website host and other service providers, including search engines and ad networks serving the site.
Ensure the infringement is well-documented. Record each time someone uses your copyrighted work or trademark, and document any use of your trade secret. Make sure to include the dates on which you notice the unauthorized use. If the other party is infringing your work by posting it on a website, you can find out who owns the site by using whois.
If it works, then the matter is settled. If it doesn’t, then you need to determine whether you want to take the matter to court.
Depending on the type of infringement, you may be able to file a civil case, a criminal complaint, or both. Trademark, copyright, and patent infringement are typically handled in civil court; however, most intellectual property infringement cases are handled in federal court.
In summary, the following are the proper steps to prove theft of intellectual property:
- Identify your type of intellectual property
- Understand your intellectual property rights
- Research the laws protecting you from theft
- Identify who had access to intellectual property
- Document the infringement
- Determine whether the has been “fair use”
- Determine how much the infringement costs you
- Send a cease and desist letter
- Contact law enforcement
- Hire an attorney to bring a lawsuit for theft or infringement