Responding To Trademark and Copyright Infringement Claims

September 6, 2020

In recent months, there has been an uptick in copyright or trademark infringement claims. There are copyright troll law firms out there who scour the internet - including archives - to find any incidents of infringement. It is much like a debt collection scenario in their approach to collecting from you. If you are a business owner, it is important to understand how to fight for your intellectual property rights. Intellectual property includes trademark and copyrights.

Trademarks and copyrights protect your right of ownership to any images, books, software, magazines, newspapers, music, movies, audio recordings, advertising copy, and artwork. What happens if you are accused of infringing upon someone else’s intellectual property rights? Here are some strategies for responding to copyright and trademark claims.

Decide Whether or Not the Copyright or Infringement Claim is Valid

The first step is to talk to an experienced lawyer about the demand letter you received. Your lawyer will advise you as to whether or not the person who sent the letter has a valid claim. If you did use trademarked or copyrighted material without the required permission, then you will need to stop using the materials. If the claim is not valid, you are not under any legal obligation to stop using intellectual property. Your lawyer can help advise you as to the best next steps you can take.

Consider Whether You Can Use the Fair Use Exception

If you receive notice that you are facing a claim of copyright infringement, you may be able to continue using the intellectual property under the fair use exception. Under the United States Copyright Act, people can use certain work that is copyright-protected without permission in limited circumstances. People can use copyright-protected work for news-reporting, research, education, and commentary. There is wide misconception about what constitutes fair use. Your lawyer can help you determine whether or not you qualify for the fair use exception.

You Can Make a Counter-Claim

If you are a seller on Amazon, eBay, or another large commercial marketplace, you can file a counterclaim. In most cases, when someone files a copyright infringement claim against you on Amazon, you can submit a counter-claim. It is important to speak to an attorney before filing your counter-claim through Amazon. You will need to set forth the legal reasons why you are not in breach of trademark or copyright infringement. If you have registered a federal trademark of copyright, you can raise that defense in your counterclaim. You can also demonstrate you possess proper permission to use the intellectual property in question.

Copyright is Strict Liability

A common misconception is that if you accidentally infringe upon someone else's copyright, and you take it down, all will be forgiven. This is not how the law works.  Copyright law is strict liability.  This means that whether you accidentally or willfully use someone else's protected work, you can still be liable for some amount of damages (I.e., money). Willful infringement is more serious. However, strict liability means no specific intention or fault is required to be liable. There are defenses that can mitigate or erase any claims of infringement, but it is not as simple as stopping the use of the work. This is why it is important to talk to an attorney who can identify ways to mitigate or counter any claim against you.

Contact an Experienced Intellectual Property Lawyer

It is important to consult an attorney if you receive a claim of infringement. Intellectual property cases are very fact specific. The letters sent by the copyright troll law firms can sound scary and are meant to induce the recipient into paying up or suffer the consequences. Often times, these "consequences" being threatened are not legally permissible. These letters intend to make it seem like paying will be cheaper than hiring a lawyer.

Attorney Julie C. Hancock is here to help small business owners. If you have received a demand letter stating that you have violated someone’s copyright or trademark, she can help you respond to the letter. If you are not in violation of someone’s intellectual property rights, she can help you respond accordingly. If you are in violation, she can advise you on a winning legal strategy.

One of the best ways to prevent trademark and copyright infringement claims is to prepare yourself in advance for those claims. During your virtual Business Copyright and Trademark Check-Up, Attorney Hancock can evaluate your situation and help you register your intellectual property while putting strategies in place to prevent infringement claims. Schedule your check-up today to learn how we can help.

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