Navigating Commercial Infringement

Note: Links to our free templates are at the bottom of this long guide.
Also note: This is not legal advice

Introduction

Infringement of intellectual property is a serious issue, with potentially devastating consequences for businesses of all sizes. It is important for entrepreneurs and legal professionals to understand why infringement matters and the steps that must be taken to protect their own intellectual property from it. To prevent infringement from occurring or resulting in losses or other damages, businesses must take proactive steps such as registering trademarks and copyrights, applying for patents, and safeguarding trade secrets. In addition, companies should consider taking legal action against any party that infringes upon their intellectual property - including filing a lawsuit, requesting an injunction, or seeking damages.

It is important to note that infringement of intellectual property isn’t restricted to just one type - it can include trademarks, copyrights, designs and patents as well as trade secrets - so it is key to ensure you are aware of the types of Intellectual Property that are protected in order to protect your own. Infringement can also have a negative effect on the reputation of a business; if the infringer uses material without permission then this can lead to lost sales and customers due to unfair competition.

At Genie AI we believe everyone should have access to high quality legal documents without paying for expensive lawyers – so our team has developed the largest open source library of templates related to infringement. Our dataset teaches our AI what a market-standard infringement looks like – allowing anyone using our platform or resources access increased levels of protection against potential violations quickly and securely. With this library users can draft customisable legal documents in no time at all!

Ultimately though understanding how best navigate commercial infringement comes down having an appreciation for its complexities – so make sure you read on below for our step-by-step guidance & find out how you can access template library today (no Genie AI account required!).

Definitions

Commercial Infringement: Unauthorized use of another person’s intellectual property in a commercial setting, which is considered a form of theft.

Intellectual Property Rights: Legal rights that protect the owner’s exclusive rights to their creations, such as inventions, artwork, and creative works.

Trademarks: Symbols, words, or designs used to distinguish a product from others in the marketplace.

Patents: Legal protection for inventions that provides the owner with the exclusive right to make, use, and sell the invention for a set period of time.

Designs: Inventions, works of art, and other creative works that are protected by copyright law.

Copyright: Form of protection provided to authors and artists for their original works, which gives them the exclusive right to reproduce, distribute, perform, and display their work.

Trademark Infringement: Unauthorized use of a mark that is confusingly similar to a registered trademark.

Patent Infringement: Unauthorized use, making, or selling of a patented invention.

Design Infringement: Copying or using an individual’s design or artwork without permission or authorization.

Copyright Infringement: Reproducing, distributing, performing, or displaying a copyrighted work without permission or authorization.

Identifying Infringement: Researching intellectual property rights of parties involved to determine if use in question is unauthorized.

Investigating an Infringement Claim: Collecting evidence, analyzing the evidence, and interviewing witnesses.

Cease and Desist Orders: Court orders that require infringing party to stop their infringing activities.

Damages: Monetary compensation for the harm caused by the infringement.

Injunctions: Court orders that prohibit the infringing party from continuing their infringing activities.

Litigation: Process of resolving disputes by bringing a legal action in court.

Alternative Dispute Resolution: Process of resolving disputes without going to court, such as through mediation or arbitration.

Pre-action Protocols: Guidelines designed to help parties to a dispute resolve the matter without going to court.

Copyright Exceptions: Exceptions to copyright protection, such as fair use and educational use.

Enforcement of Court Judgments: Ensuring that the judgment is followed.

Domestic Enforcement: Enforcing the judgment within the jurisdiction in which it was issued.

International Enforcement: Enforcing the judgment in a foreign jurisdiction.

Contents

1. Definition of Commercial Infringement
2. Overview of Intellectual Property Rights
3. Trademarks
4. Patents
5. Designs
6. Copyright
7. The Different Types of Infringement
8. Trademark Infringement
9. Patent Infringement
10. Design Infringement
11. Copyright Infringement
12. Identifying Infringement
13. Investigating an Infringement Claim
14. Collecting Evidence
15. Analyzing Evidence
16. Interviewing Witnesses
17. Legal Remedies for Infringement
18. Cease and Desist Orders
19. Damages
20. Injunctions
21. Other Remedies
22. Litigation and Alternative Dispute Resolution
23. Preparing a Complaint
24. Pre-trial Discovery
25. Mediation
26. Arbitration
27. Enforcement of Court Judgments
28. Domestic Enforcement
29. International Enforcement
30. Pre-Action Protocols
31. Copyright Exceptions
32. Fair Use
33. Educational Use
34. Public Performance Exceptions

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Definition of Commercial Infringement

• Understand the concept of commercial infringement
• Know what types of intellectual property may be infringed
• Learn the possible consequences of infringement
• Understand how to avoid potential infringement
• Be able to recognize the signs of infringement
• Be able to identify the legal remedies available to those who have been infringed upon

Once you have a good understanding of the definition of commercial infringement, you can move on to the next step.

Overview of Intellectual Property Rights

• Understand the basics of intellectual property rights, such as trademarks, copyrights, and patents
• Learn what is considered infringement of intellectual property rights
• Research the various ways in which intellectual property rights can be enforced
• Familiarize yourself with the consequences of violating intellectual property rights

Once you have a good understanding of intellectual property rights, you can move on to the next step: Trademarks.

Trademarks

• Research whether the product or service in question has been registered as a trademark
• Research any relevant case law to determine whether the product or service infringes on another person or company’s trademark
• Consult with an attorney to ensure that your product or service does not infringe on any existing trademark rights
• When you have determined that your product or service does not infringe on any existing trademarks, you can move on to the next step.

Patents

• Review the patent register to understand the type of patents that are in force and the companies or individuals who own them
• Check for any potential infringement of existing patents
• Make sure to review the patent register at least once a year
• Contact the patent owner if you have any questions or concerns about the patent
• If necessary, seek legal advice to ensure that you are not infringing any patents
• When you have completed this step, you will have a better understanding of the patents that are in force and whether or not your business is infringing on any of them.

Designs

• Research relevant designs that may have been registered or unregistered. It is important to consider both registered and unregistered designs in order to assess the scope of the infringement.
• Identify any potential overlap between the designs of the alleged infringer and any protected designs.
• Determine if there is any substantial similarity between the protected and alleged infringing designs.
• Once you have completed your research and analysis, you can move on to the next step of assessing the potential copyright infringement.

Copyright

• Understand what copyright is and how it applies to your business
• Learn the categories of copyright law and the different types of works protected by copyright
• Research the copyright registration process and other legal protections for copyrighted works
• Familiarize yourself with the intellectual property rights of others and the penalties for infringement
• Research recent court cases related to copyright infringement and review the outcome
• Determine the best way to protect your work from copyright infringement
• When you have completed all of the above, you can move on to the next step: The Different Types of Infringement.

The Different Types of Infringement

• Determine if the rights of the copyright owner have been violated by the use of their work
• Understand the different types of infringement, including copyright, trademark, patent, trade secret, and other intellectual property rights
• Learn the consequences of infringing upon another’s intellectual property rights
• Be aware of the common defenses to infringement claims
• Understand how to protect yourself from potential infringement claims

Once you’ve completed your research on the different types of infringement, you will have a better understanding of potential infringement and the consequences of infringing upon another’s intellectual property rights. You can then move on to the next step, which is trademark infringement.

Trademark Infringement

• Research and understand the trademark that has been allegedly infringed upon
• Check if the trademark has been registered with the U.S. Patent and Trademark Office
• Determine whether the alleged infringer is using a mark that is similar enough to the original to cause confusion
• If the trademark is found to have been infringed upon, consider legal action in order to protect your rights
• Once you have taken the necessary steps to protect your trademark, you can check this step off your list and move on to the next step, Patent Infringement.

Patent Infringement

• Research the patent you believe is being infringed upon
• Identify patent numbers, filing dates, and other applicable details
• Notify the infringing party of the infringement
• If the infringing party does not respond, seek legal counsel and begin the process of filing a lawsuit
• If the infringing party does respond, work with them to reach a mutually beneficial resolution or seek legal counsel
• Once the issue is resolved, ensure that all infringing activities have ceased and all legal obligations are met
• Monitor the infringing party to ensure that the infringement does not continue
• Once all the legal requirements are met, you can move on to the next step.

Design Infringement

• Research design patent laws applicable in the jurisdiction where infringement is suspected.
• Determine if the design in question is protected by a design patent.
• If the design is protected by a design patent, assess its validity.
• Determine if the accused design is substantially similar to the protected design.
• If similar, determine if the accused design falls under the scope of the patent.
• If so, determine the appropriate damages or remedies available.
• When all steps are complete, you can move on to the next step, Copyright Infringement.

Copyright Infringement

• Learn the basics of copyright: what it is, what it protects, and how it is enforced
• Understand the different types of copyright infringement
• Research the law to determine what constitutes a copyright violation
• Determine if a copyrighted work has been infringed upon
• Make sure that any use of a copyrighted work is within the bounds of copyright law
• Consult an attorney if you believe a copyright violation has occurred
• When you have identified a copyright infringement, you can move on to the next step of identifying the infringement.

Identifying Infringement

• Become familiar with the copyright owner’s rights and the scope of the copyright
• Compare the copyrighted work with the allegedly infringing work to determine if there are any similarities
• Identify any registered trademarks that may have been infringed upon
• Be aware of the potential damages associated with infringement
• Identify the parties responsible for the infringement

Once you have identified all of the potential infringement issues, you can move on to the next step of investigating the claim.

Investigating an Infringement Claim

• Contact the alleged infringer directly and inform them of the infringement
• Make sure to provide details of the infringement, including the copyright you believe is being infringed and the corresponding works
• Request that the infringer immediately stop the infringing activity and provide evidence that they have done so
• Gather evidence and documentation to prove the infringement and document any response from the infringer
• You will know you have completed this step when you have contacted the alleged infringer and have gathered evidence and documentation to prove the infringement.

Collecting Evidence

• Collect any and all evidence available that can be used to support your infringement claim. This could include photos, video footage, emails, physical objects, etc.
• Contact any third parties who may have witnessed the infringement, such as employees or customers.
• Request any information from the accused party that can be used to support the claim.
• Document all the evidence collected, keeping track of the date, time, location, and any other relevant details.
• When you have a clear and comprehensive set of evidence, you can check this step off your list and move on to the next step.

Analyzing Evidence

• Carefully evaluate the evidence collected to determine if infringement has occurred
• Identify any potential defenses, if applicable
• Determine the appropriate remedies to seek
• Prepare a summary of findings to present to the client
• When you have a clear understanding of the evidence, you can move on to the next step of interviewing witnesses.

Interviewing Witnesses

• Create a list of witnesses to contact
• Use the evidence gathered to formulate questions to ask the witnesses
• Schedule interviews with each witness
• Follow up with each witness to ensure that the interview was productive and all questions were answered
• Record or take notes during the interviews
• When all witnesses have been interviewed, review and analyze the information collected
• When all of the information has been reviewed and analyzed, you can move on to the next step of determining legal remedies for infringement.

Legal Remedies for Infringement

• Consult with a lawyer to determine the best course of action for your situation.
• Research the copyright laws of your jurisdiction to determine what remedies are available to you.
• Determine if the infringement is willful or innocent by investigating the actions of the infringer.
• Negotiate a settlement or court order that will protect your rights and prevent future infringement.
• Consider filing a lawsuit to seek damages and/or injunctive relief.

Once you have consulted with a lawyer, researched the copyright laws of your jurisdiction, determined if the infringement is willful or innocent, negotiated a settlement or court order, and considered filing a lawsuit, you can check this step off your list and move on to the next step.

Cease and Desist Orders

• Draft a Cease and Desist Letter: Draft a Cease and Desist Letter to the party infringing on your intellectual property. Be sure to include the exact infringing material and the exact actions that you want the infringer to stop doing.
• Send the Cease and Desist Letter: Send the Cease and Desist Letter to the infringing party by certified mail.
• Wait for a Response: Wait for a response and be prepared to take further legal action if you do not receive a response or if the response is unsatisfactory.
• Monitor the Infringer: Monitor the infringer to ensure they are abiding by the Cease and Desist Letter.

You will know this step is complete once you have sent the Cease and Desist Letter and received a response.

Damages

• Determine the appropriate damages for the infringing activity
• Calculate the actual damages by determining the lost profits as a result of the infringement
• Calculate statutory damages as an alternative to actual damages if the actual damages cannot be determined
• Determine the amount of attorney’s fees and costs associated with the infringement
• Determine whether to include a provision for future damages
• When you have determined the appropriate damages, you can begin the process of collecting them.

You will know you can move on to the next step when you have determined the amount of damages that should be collected.

Injunctions

• Understand the difference between permanent and temporary injunctions and how they can be used to prevent further infringement.
• Can seek an injunction to stop the infringing party from using the property, prevent them from entering a contract with a third party to use the property, and seek an order to deliver infringing property to the owner.
• Research the applicable laws in your jurisdiction and the requirements to obtain an injunction.
• Submit an application for an injunction to the court, with the appropriate supporting evidence.
• Attend any court hearings related to the injunction.
• Once an injunction is granted, the infringing party must comply to the court’s orders.
• You will know when you can check this off your list and move on to the next step when the court grants an injunction or denies the application.

Other Remedies

• Evaluate the available remedies for the infringement, such as damages, profits, and statutory damages
• Determine whether monetary remedies are the best option for the infringement
• Consider other non-monetary remedies to address the infringement, such as a public apology or a corrective advertising campaign
• Draft and send a demand letter to the infringing party, outlining the remedies you are requesting
• Negotiate a settlement agreement with the infringing party, if possible
• Once you have reached a resolution, ensure that all parties have complied with the terms of the agreement
• Check off this step when all parties have met their obligations under the agreement.

Litigation and Alternative Dispute Resolution

• Consult an intellectual property attorney to discuss and evaluate the potential for litigation
• Analyze the risks and advantages of taking legal action
• Consider various forms of alternative dispute resolution, such as arbitration or mediation
• Research applicable laws, regulations and court decisions to ensure that your case is viable
• Determine the potential cost of litigation and the potential outcomes
• When you have identified the best course of action, take the necessary steps to move forward

When you have completed the steps above, you can move on to the next step: ### Preparing a Complaint.

Preparing a Complaint

• Identify which laws the defendant has allegedly violated
• Gather evidence of the infringement, such as copies of emails, contracts, or other documents
• Draft a complaint for the court, including the legal basis for the claim and the damages requested
• File the complaint with the court, along with any other necessary documents
• Serve the complaint to the defendant
• When the defendant has been served, you can check this step off your list and move on to the next step of pre-trial discovery.

Pre-trial Discovery

• Obtain relevant documents from the defendant and any third-party witnesses
• Request documents from the defendant that may be relevant to the case
• Request deposition of the defendant and any third-party witnesses
• Exchange initial disclosures with the defendant
• Obtain expert witnesses to provide testimony
• When all of the above is complete, move on to the next step: Mediation.

Mediation

• Contact the infringing party to discuss the possibility of coming to an agreement without having to go to court.
• Send a written demand letter or settlement offer to the infringing party.
• If the other party agrees to mediation, contact a mediator and work out the details of a settlement.
• Once the settlement is agreed upon and signed, both parties are legally bound to comply with the terms of the agreement.
• You will know you can move on to the next step when a settlement has been reached and both parties agree to the terms.

Arbitration

• Consult with an IP lawyer to explore if arbitration is the best option to resolve the commercial infringement issue
• Submit a demand for arbitration to the other party
• Appear in person or via video conference at the hearing
• Present evidence and witnesses to support your case
• Negotiate a settlement to resolve the issue
• Once a settlement is reached, or an arbitration award is given, the process of arbitration is complete and you can move on to the next step of enforcing the court judgement.

Enforcement of Court Judgments

• Research any local laws that may be applicable to enforcement of the court judgment
• Serve the judgment by delivering a copy of the court’s ruling to the defendant
• File a writ of execution with the court clerk
• Ask the court clerk to issue the writ of execution to the sheriff
• Work with the sheriff to execute the court judgment
• Monitor the defendant’s assets and financial accounts to determine when the judgment is paid off
• File a satisfaction of judgment with the court when the judgment is paid off

You’ll know you can move on to the next step when all of the above steps have been completed, and the judgment has been paid off.

Domestic Enforcement

• Send a cease-and-desist letter to the infringing party, detailing the infringement and the steps that must be taken to rectify the situation.
• Consider filing a lawsuit for damages and/or an injunction against the infringing party.
• If a settlement is reached, ensure that the infringing party is aware of the consequences of any future infringement.
• Monitor the situation going forward to ensure that the infringing party does not continue their infringing activity.

You can check off this step when all of the above steps have been completed to your satisfaction or you have otherwise successfully enforced your rights domestically.

International Enforcement

• Research the laws and regulations in the country or countries where the infringement is occurring
• Understand the process of filing a lawsuit in the jurisdiction, including the timelines and costs
• Engage a local lawyer or firm in the jurisdiction to file paperwork, collect evidence, and present your case
• Work with a translator to communicate with the court, lawyers, and witnesses
• Monitor the progress of the lawsuit and take any necessary actions

When you have hired a local lawyer and understand the process of filing a lawsuit in the jurisdiction, you can check this step off your list and move on to the next step.

Pre-Action Protocols

• Review applicable international treaties, conventions and agreements to determine which country’s laws will govern potential infringement actions
• Gather evidence and assess potential defendants, including determining possible types of damages, costs and remedies
• Draft a cease-and-desist letter to the potential infringer, including a clear and concise notice of the alleged infringement and the remedies sought
• Monitor the progress of the cease-and-desist letter and the response of the alleged infringer
• When the cease-and-desist letter is received and a response is received or not received, you can check this off your list and move on to the next step.

Copyright Exceptions

• Understand what is meant by the term ‘Copyright Exceptions’ – these are limited circumstances where a copyrighted work can be used without requiring permission from the rights holder.
• Review the laws in your jurisdiction to identify the available copyright exceptions.
• Consider if any applicable exceptions apply to the use of the copyrighted material in the case of an alleged infringement.
• Prepare a detailed analysis of the facts, the applicable legal framework and the applicable copyright exceptions.
• When you have reviewed all of the available information and prepared your analysis, you can move on to the next step.

Fair Use

• Research the four factors of fair use to determine if your use of copyrighted material falls under fair use
• The four factors are: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use on the potential market or value of the copyrighted work
• You can check this step off your list when you have determined whether or not your use of copyrighted material falls under fair use.

Educational Use

• Understand the Copyright Act’s educational use exemption
• Read the Copyright Office’s guidance on educational use
• Confirm that the work is being used for non-profit educational purposes
• Confirm that the work is being used for the purpose of teaching, scholarship, or research
• Confirm that the use does not have a significant detrimental impact on the potential market for the work
• Confirm that the use complies with the requirements of the Copyright Act
• Once you have checked off all these items, you can move on to the next step: Public Performance Exceptions.

Public Performance Exceptions

• Understand what is meant by the term “public performance” in the context of copyright infringement
• Research the copyright laws that apply to your situation to determine if you can use a public performance exception
• Make sure that your use meets the requirements of the public performance exception
• Verify that the material you’re planning to use is not owned by a third-party
• Ensure that no additional fees are required to use the material
• Document your use of the public performance exception, including the specific material used and the date
• When you’ve completed the steps above, you can check this off your list and move on to the next step.

FAQ

Example dispute

Infringement Suits

• A plaintiff may raise a lawsuit referencing an infringement if they can prove that their rights or interests have been violated. This can include copyright, trademark, patent, trade secret, or other forms of intellectual property protection.
• The plaintiff must demonstrate that their rights were violated and that they suffered some form of damage as a result. This could include lost revenue, reputational harm, or other financial losses.
• In order to win a lawsuit, the plaintiff must present evidence that the defendant willfully violated their rights and must provide evidence of the damages suffered.
• The court may order a variety of remedies such as injunctions, damages, or both.
• Damages can include compensatory, statutory, and/or punitive damages depending on the specifics of the case.
• Settlement may be reached out of court without a trial and can include a variety of terms such as monetary compensation, injunctions, or other agreements.

Templates available (free to use)

Cease Desist Letter Copyright Infringement
Cease Desist Letter Trademark Infringement
Copyright Infringement Particulars Of Claim
Expert Declaration Supporting Motion Summary Judgment Of Infringement Re Patents
Expert Declaration Supporting Motion Summary Judgment Of Non Infringement Re Patents
Infringement Appeal Brief Accused Infringer
Infringement Appeal Brief Patent Owner
Infringement Expert Direct Examination Outline Re Patents
Infringement Expert Report Re Patents
Letter Of Claim For Copyright Infringement
Letter Of Claim For Design Right Infringement
Letter Of Claim For Patent Infringement
Letter Of Claim For Registered Design Infringement
Letter Of Claim For Trade Mark Infringement
Local Patent Rule Infringement Contentions Disclosures Patent Owner
Motion Dismiss Direct Induced And Contributory Infringement Claims Re Patents
Motion Dismiss Willful Infringement Claims Memorandum Of Law Re Patents
Motion Judgment As A Matter Of Law Of No Willful Infringement Memorandum Of Law Re Patents
Motion Judgment As A Matter Of Law Of Non Infringement Memorandum Of Law Re Patents
Motion Summary Judgment Of Infringement Memorandum Of Law Re Patents
Motion Summary Judgment Of No Willful Infringement Memorandum Of Law Re Patents
Motion Summary Judgment Of Non Infringement Memorandum Of Law Re Patents
Non Infringement Expert Direct Examination Outline Re Patents
Non Infringement Expert Report Re Patents
Patent Infringement Counterclaim Grounds Of Invalidity
Patent Infringement Defence And Counterclaim
Patent Infringement Expert Deposition Outline Re Patents
Patent Infringement Particulars Of Claim
Patent Non Infringement Expert Deposition Outline Re Patents
Patent Non Infringement Opinion
Plaintiff S Trademark Use And Infringement Declaration Re Trademarks

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