Trademark and copyright litigation is categorized under intellectual property litigation which is governed by a common law. This includes sending of a cease and desist letter upon the occurrence of violation by statute. As this happens, statutory benefits of notice are acquired to be followed by filing of the suit, either for the violation of copyright or trademark. Filing of suit can occur regardless if a trademark or copyright is registered or not with the United States Patent and Trademark Office.
Trademarks are every company’s signature. Just like any personal signature, trademarks depend on people’s good faith and trust in them. A trademark only becomes of value based on the trust customers place in the company along with the products it offers.
This is the reason why infringement of trademark is harmful to a company and the products it offers. A mark that is misappropriated often brings negative effects to the company. Most of all, it often destroys the trust that the company gained from their customers. Hence, it can be concluded that intellectual property infringement cannot be more damaging than a trademark infringement. That is because it results not only stealing the profits of that a company deserves, but also affects the trademark’s value negatively.
There are two things a company may take when facing with this kind of situation. The first is to take civil actions for the trademark infringement. Second is to take opposition actions for the prevention of getting issued with an infringing mark.
- Trademark Infringement Suits
Most trademark litigation involves infringement suits, which is the action taken when a person discovers that their mark has been used illegally. This type of suit is often a very lengthy and complex process. But, there is a range of remedies that can be taken by the infringed party and here they are:
- Injunctive Relief – The most common form of this is the imposition of an injunction to the offending party. This prohibits the offending party from further using the mark while also affirming and protecting the party’s rights to the trademark.
- Profits – The Trademark infringement suit’s plaintiff is given the chance to recover the profits obtained by the defendant through using the latter’s trademark.
- Treble Damages – The court awards the plaintiff with three times the damages or profits evaluated in the case. This happens if the trademark infringement t entailed usage of a designation not unless there are present extenuating circumstances.
- Actual Damages – There are cases when the plaintiff becomes entitled to the damages sustained for misusage of the mark. The damages may include compensation of the mark’s lost value. For instance, this is what will happen if the mark is used or affixed on inferior goods.
- Statutory Damages – In this case, the plaintiff may choose to recover the statutory damage instead of the profits or actual damages before the final judgement takes place. Statutory damages’ amount varies on certain circumstances, which shall be discussed by the Court as well. But generally, the amount is often in the range between $1,000 and $2,000,000.
- Cost – There are times when the plaintiff is also required to recover a reasonable amount of the attorney’s fees or of the taken action.
- Trademark Opposition
There are circumstances when trademark litigation also involves bringing resistance to any pending trademark. This action often involves preventing the trademark from getting registered and infringing the already registered trademark and hence, results to the public’s confusion. Taking this action is advantageous since it can altogether prevent a mark infringement. However, such cases requiring this action to be taken necessitate it to hire a knowledgeable and experienced attorney. This is necessary for the issues to be better understood and for the needed strong representation to be provided efficiently.
Copyright litigation is also focused on violation and infringement of the rights of the copyright holder. It can also be as complex as trademark litigation. But in this case, it is for the reason that there is no need to get the copyright registered for any infringement to take place. Hence, this makes it possible for infringement complaints to happen even before its registration.
This nature of copyright litigation made actions highly about proving the rights of the person to the copyright. But there are other circumstances that can make these suits more complicated, like the involvement of criminal charges. These are the same reasons that make it essential to use the services of an attorney with experience concerning intellectual property law. Using the services of a legal professional is necessary since they are the only ones who can advise about the best remedy to pursue in dealing with such cases. Here is a list of remedies that an attorney might advise depending on the case’s background:
- Injunction – Just like trademark litigation, the best action to take when dealing with copyright litigation is through injunction for the offending party to be completely prevented from further infringement. This copyright litigation remedy is used throughout the US and it can be enforced in the course of contempt hearings.
- Impoundment and Destruction – In this case, there is a chance for the case to order for all phone records and copies relating to the infringement of the copyright to be impounded. The court may also order all these items to be destroyed or disposed of.
- Profits and Actual Damages – The copyright holder in this suit is required to recover all sustained actual damages caused by the infringement. This individual is also required to recover the profits gained by the offending party along with those that not included in calculating the actual damages.
- Statutory Damages – The copyright holder has the option of choosing to recover the statutory damages in this case, instead of the profits and actual damages. The amount to be recovered is all dependent on the decision of the Court along with other considerations. But this amount should be between $200 and $150,000.
- Attorney’s Fees and Costs – Depending on the court’s decision, either of the party may be entitled to recover the full costs or reasonable amount of the attorney’s fees.
- Criminal Penalties – Criminal penalties are strictly not considered as a remedy, but there are instances when this is the best action to be taken. Such instances involve willful copyright infringement. This type of copyright infringement is punishable and can entail imprisonment of up to 10 years or providing the fine of $250,000, depending on the circumstances.
Trademark and copyright litigation requires an effective attorney. When looking for an attorney to help in these instances, you need to find one who highly knows a trademark and importance of creative work. You need to look for an attorney who will ensure that any of your intellectual properties are not abused or stolen, which are the exact legal professionals you will find here!