Intellectual Property Litigation

Intellectual property disputes can be difficult to navigate in an increasingly digital world. This type of litigation is one of the most complex for individuals and businesses because the laws are not always as clear in the “wild west” legal landscape of intellectual property in the Information Age.

COPYRIGHTS, PATENTS, TRADEMARKS, AND TRADE SECRETS

Litigation frequently arises over copyright piracy, trademark counterfeiting, patent infringement, and other intellectual property disputes, especially in the modern context of the internet and global markets. The legal remedies available for protecting your work depends on the type of intellectual property.

COPYRIGHTS

Copyright protection can apply to works of authorship that include:

• Literary, musical, artistic, and dramatic works
• Pictorial, graphic, and sculptural works
• Motion pictures and other audiovisual works
• Sound recordings
• Computer software
• Architectural works

Works that cannot be copyrighted include ideas, facts, methods, systems, short phrases, names, titles, and utilitarian language. Copyright law extends only to original works of authorship that are fixed in a physical medium (such as paper, canvas, disk, or computer drive).

Copyrights generally last for the life of the author, plus an additional 70 years.

PATENTS

Under U.S. patent law, anyone who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” may obtain a patent.

To qualify for a patent, an invention must be:

• Novel (different from other inventions in the public domain)
• Useful (accomplishes something or produces a result)
• Not obvious (from the point of view of an inventor)

Patents are granted for 15 or 20 years. A provisional patent application (“patent pending”) establishes an early filing date and gives the inventor one year to apply for a nonprovisional patent.

TRADEMARKS

Trademarks identify and distinguish one party’s product or service from another party’s. They may apply to:

• Names (including Internet domain names)
• Images, symbols, colors, and logos
• Slogans and phrases
• Product design and product packaging

Competing trademarks are allowed to be similar. The legal test for trademark infringement is likelihood of confusion between two different brands that are commercially related.

Trademarks are issued in ten year terms but can generally be renewed indefinitely, as long as the mark requires ongoing protection.

TRADE SECRETS

Information that you would prefer to keep in-house because it confers a competitive advantage is known as a trade secret.

Trade secrets lack the formal protection of government registration but may be preferable to a patent or a copyright for some forms of intellectual property, such as:

• Customer lists
• Product formulas
• Computer algorithms
• Marketing strategies
• Manufacturing techniques

Trade secrets last indefinitely—provided they are kept secret. Once a trade secret is publically disclosed, it is typically no longer protected.

CYBER-PRIVACY

Cyber-privacy, or Internet privacy, has to do with how personal data is stored, distributed and—in many cases—sold.

It is now standard for companies like Facebook to offer free social media services in exchange for users’ personal data. Although common, any company that does collect user data must have terms of agreement stipulating how, when, and to what end personal data will be offered to third parties.

While some websites display language reassuring visitors that any data collected is confidential, others inform visitors that the data collected will be shared in order to improve the service.

In many cases, websites allow users to select their data sharing preferences. Transparency is imperative regardless of a website’s data collection policies.

But as we all know by now, once personal data enters the digital space, it is technically possible for anyone to access it—legally or not. This is where cyber-privacy litigation comes into play.

What, if any, responsibility do businesses have in protecting their users against data breaches? Current legal precedents suggest that a considerable level of responsibility is expected, particularly when the business has promised a certain level of security to its customers.

Data breaches can put users at risk for identity theft, harassment, and financial loss, among many other concerns. Even when a third party does not breach the data of a website, the website’s owners still have a responsibility to collect and store data responsibility.

MISAPPROPRIATION OF LIKENESS

A relatively new type of litigation has arisen with the advent of social media and the increase in the pervasiveness of celebrity culture: misappropriation of likeness.

Misappropriation of likeness is based on the idea that individuals have certain legal rights to their own personal brand, although they may not specifically have copyrights or trademarks connected with it. This is an increasingly common issue for public figures who have created a recognizably distinct personal brand and rely on its protection to preserve their livelihood.

An example of a misappropriation of likeness dispute would be the use of a celebrity’s photo to sell a product that is not authorized by or connected with that celebrity. The issue of contention would be that someone else is, without permission, profiting off of a celebrity’s likeness.

The laws around these types of cases are still evolving, but it is possible for public figures to recover owed compensation for the unauthorized use of their likeness.

Free Consultation with Intellectual Property Litigation Lawyer

If you are here, you probably have a trademark issue you need help with, call Ascent Law for your free intellectual property law consultation (801) 676-5506. We want to help you.