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Are Others Violating Your Trademark, Copyright or Patent?

Trademarks, copyrights and patents are forms of business property commonly referred to as “intellectual property.” Each provide distinct rights to the owner to protect the way a business identifies itself to the public and distinguishes its goods and services, and to prevent competitors from copying its original works or inventions.   A business’ intellectual property is often its most valuable asset, and for this reason, a target for infringement and misuse by competitors. The business litigation attorneys of Brown & Charbonneau, LLP can help.   We have experience going to trial on claims involving all forms of intellectual property and have litigated the nuances and potential pitfalls for the inexperienced.

Trademark Infringement

To support a legal claim for trademark infringement under federal law, the owner must prove: (1) the validity of the trademark, (2) the infringer’s use of the trademark, (3) in commerce, (4) in the connection with the sale or advertising of goods and services, and (5) that the infringer’s use was without consent. In addition, it must be proven that the infringer’s use of the trademark is “likely to cause confusion,” as to the association of the parties, or as to the origin of the infringer’s goods, services or commercial activities of the owner of the trademark.

Copyright Infringement 

Anyone who violates any of the exclusive rights of a copyright owner is an infringer of the copyright. To support a legal claim for copyright infringement, the owner must show valid ownership of the copyright, i.e. that they are the author of the original work, and that the infringer copied the original work (violated an exclusive right of the owner) without authorization. Although one can own and enjoy the exclusive rights of a copyright without registration, registration is a requirement before a lawsuit for copyright infringement can be filed.

Patent Infringement

Anyone who (1) makes, uses, offers to sell or sells a patented invention, (2) within the United States (or imports a patented invention into the United States), (3) during the term of the patent, (4) without the consent of the owner, is an infringer of the patent. In determining infringement, the focus is the scope of the patent, because the purpose of the patent is to apprise the public of what is and what is not protected by a particular patent.

Damages Available for Intellectual Property, Trademark, Copyright, Patent Infringement

If successful in a lawsuit for trademark, copyright or patent infringement, the owner may recover monetary compensation for any actual injuries or losses suffered by the infringement. In addition, in trademark and copyright cases, and patent cases involving a design patent, the owner may recover an award of the infringer’s profits. In all cases, the owner may also seek an order by the court in the form of an injunction, stopping or preventing continued infringement of the trademark, copyright or patent.