Infringement And Misappropriation | Everything You Need To Know
Violation of intellectual property rights is called "infringement" concerning patents, copyright, and trademarks. On the other hand, "misappropriation" is more related to trade secrets and ideas. While intellectual property infringement and misappropriation are serious matters, it is not always easy to identify whether or not the crime has actually taken place. So today, we’re going to break down everything about these two domains of the IP industry.
Infringement
Intellectual property (IP) infringement refers to any violation or breach of protected intellectual property rights. For example, your IP rights may have been infringed if your work that is protected by IP laws is copied or otherwise used or exploited without your permission.
IP infringement can range from piracy (unauthorized use), copy, reproduction, or distribution of materials protected by IP rights to counterfeiting, which is the practice of replicating genuine goods with the intent to mislead the recipient.
Types of IP Infringement
As we know, there are several types of intellectual property rights, such as copyrights, patents, trademarks, industrial designs, and trade secrets. Therefore, an intellectual property infringement may, for instance, be one of the following:
● Copyright infringement
● Patent infringement
● Trademark infringement
● Design infringement
How to identify IP Infringement?
Determining if the IP rights of your client have been infringed upon is sometimes as easy as conducting a basic search via the internet. The reason is, Copyright, trademark, and patent information are all a matter of public record, meaning you can search for various types of intellectual property using the appropriate databases. In addition, these databases are often available online, making the search easier.
However, It is important to understand that a search for IP infringement may not always provide accurate results because the person who infringed upon your work has the property listed under different words that do not match your search. In this case, you have to do an advanced search.
● You can perform a direct patent search for inventions or published applications. Start your search with the United States Patent and Trademark Office (USPTO). You can also find databases available on the USPTO website.
● Patent and trademark resource centres are available in libraries across the country and can provide reliable answers. Besides, you may be able to reveal infringement from journal articles and other sources of authoritative literature related to your client's industry.
● Lastly, you can perform a patent search on Google using the inventor’s name, keywords, or other search criteria.
If you’re managing IP for some big fish, then it is also a good idea to consistently monitor competitors of your client to see if they are infringing on their IP rights. It is fairly common for competitors to try to keep up with the competition by offering goods that are very similar to others in the industry. While this does not always constitute an infringement, it can sometimes mean that your IP rights have been violated. You can catch any infringement activities early on by monitoring competition before the issue becomes bigger and more costly to handle.
How to handle IP Infringement?
If you discover that intellectual property has been used without permission, it is important to act fast to cease the activity as soon as possible. Even if your client does not want to sue the person, you must send a basic request to the infringer to stop using your work. For example, you can write and send out a cease-and-desist letter to the person or business. When creating this document, be sure to include detailed information about the work being infringed upon and the type of infringement (copyright, patent, etc.).
When sending out a cease-and-desist letter to the offender, be sure to state what action you would like the person to take. For example, you may want the person to stop using your trademark or remove the infringed upon material from their website.
Also, include a time limit to respond to your request. Let the offender know that if they do not respond appropriately by the given timeline, you will take further action. This may include taking legal action to stop the activity.
Misappropriation
In the simplest words, Misappropriation is generally the taking or using of something belonging to someone else. It can include trade secrets, ideas, or names and likenesses.
When it comes to Misappropriation of trade secrets, it is a form of unfair competition. Companies often attempt to lawfully discover another's trade secrets through reverse engineering or employee poaching. Companies can also engage in unlawful means of discovering another's trade secrets, including hacking into sensitive computer systems or violating non-disclosure agreements.
How to handle Misappropriation?
In case of misappropriation, handling the situation can be very complex because the burden of proof in an actual misappropriation case is on the shoulders of the trade secret owner who is claiming that trade secrets have been misappropriated.
This burden of proof requires the trade secret owner to demonstrate that they were in possession of knowledge or information that was not generally known and was valuable precisely because it was not generally known and that the knowledge or information was subject to efforts that were reasonable under the circumstances to maintain its secrecy.
Depending on the facts and circumstances of a given case, together with the nature of the intellectual property to be protected, proving the elements necessary to make out a trade secret case can be a challenging undertaking. Therefore, the best way to establish a foundation for the successful prosecution of trade secret misappropriation is to follow closely the provisions of a written trade secret protection plan and take measures to ensure the security of the information in the first place.