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When someone has stolen your IP: Should you bring an infringement suit?

It has happened. The work you spent months, possibly even years developing has shown up in someone else's song/photo/screenplay, on another company's website or in "exciting new product." You're concerned about losing your audience, your profits and your rights. Can you bring an intellectual property lawsuit to enforce your trademark or copyright? Is it even worth it?

The first step: Determining if you own the rights

The first thing you need to determine before bringing a claim is whether you own the rights to your work and have priority in it. This is straightforward if you have registered your copyright or trademark with the government. Registration creates a rebuttable presumption that you have exclusive rights to use your work or trademark -- in other words, the court will assume you own it. It will be up to the infringing party to prove otherwise.

If you have not registered your copyright (many people choose not to at first), you must register your work now before filing a lawsuit. Most copyright infringement cases are brought before federal courts, and federal law requires copyright registration for infringement claims. Registration is simple, but it can take some time. Talk to a lawyer and visit www.copyright.gov to learn more.

The second step: Working with a lawyer

I'm an attorney, so of course I would say you should work with an attorney, right? Here's the truth: lawyers experienced in IP infringement know the various procedures involved, including ways to stop the infringement before ever going to court such as sending a letter to the infringing party notifying them of the infringement and requesting prompt action. They are familiar with the entire dispute resolution process and adept at protecting your rights during settlement and trial, which can become heated if both parties claim ownership.

What remedies are available to you?

If the court finds in your favor, it may order a number of remedies, including:

  • A court order for the defendant to stop using the work or mark immediately
  • The destruction of all copies that uses the infringed IP
  • Compensation for damages you sustained as a result of the infringement, including any loss in profit, attorney's fees and court costs
  • Compensation for profits received by the defendant as a result of using your copyrighted work or trademark

Time is of the essence

Most people who notice that their work has been infringed want to act quickly. That is good, since there are strict time limits for bringing these lawsuits. The Copyright Act, for example, gives you only three years from the date of the last infringement. If you do not bring a lawsuit within this timeframe, you will lose your right to do so.

The best time to speak with a lawyer is the moment you believe you have been the victim of intellectual property infringement.

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