Counteracting Copyright and Trademark Infringement Online
Infringement of intellectual property poses significant losses to U.S. companies each year. As technology advances, individuals continue to capitalize on new methods of infringing both copyrights and trademarks. The following steps will help business owners and entrepreneurs counteract and minimize online infringement of copyrights and trademarks.
Identify and register your company’s copyrights and trademarks. Federal registration of copyrights and trademarks will provide you with a number of advantages and rights. For copyrights, registration is a prerequisite to filing a lawsuit to enforce the copyright in question and this also provides for the potential recovery of attorney’s fees and statutory damages.
For trademarks, a federal registration grants nationwide priority over trademark users who start later in time. Also, consider signing up for key social media services using your trademarks as user names to prevent others from squatting on your marks. Taking a proactive approach can save you from expensive litigation down the road.
Monitor online infringement. A good offense can be the best defense when it comes to infringement. Monitor the internet and social media platforms to ensure that copyrights and trademarks are not being infringed upon.
Depending on the nature of your products and services, infringement can occur on websites via meta tags, pay-per-click advertising, counterfeit products sold through websites or online auctions, social media sites and posts, and banner advertising. Make time for a search every once in a while. Pair this with automatic search mechanisms, and you’ll be better equipped to uncover infringement.
Use take-down processes. Several social media companies like Twitter and eBay provide take-down procedures in the case of infringement on copyrights and trademarks. Check the FAQ sections of these sites for detailed, user-friendly instructions. While not perfect, these procedures are far less expensive than filing a lawsuit.
Implement enforcement programs. If the infringement is severe or widespread, a company should consider a formal enforcement program. Such programs can be aimed at either a small group of infringers (when the infringement is concentrated) or situations where the infringement is widely dispersed across several infringers.
For widespread infringement, we suggest the following eight steps:
1. Determine the harm being suffered. In doing a cost-benefit analysis of whether to implement an enforcement program, figure out the current harm by quantifying as much as possible.
2. Set goals for the program to define a “win” in advance. Beginning with an end in mind is a good initial step.
3. Determine the benefits and costs of implementing the program. In addition to the harm being suffered, a “win” takes into account the costs of running the program.
4. Ensure that all intellectual property has been registered and is owned by the company. Do not begin the program without this due diligence. Staff the program correctly. You should only embark on a program when adequate staff is in place to keep the momentum moving forward.
5. Monitor, analyze and improve the program. With metrics in place and periodic reporting, the program should be improved with experience.
6. Look for new forms of infringement. As technology changes, new forms of infringement develop. Be watchful for additional infringement opportunities, particularly when there has been success in stopping existing infringement.
7. Leverage successes. Publicizing victories may deter future infringers. In some cases, the number of infringers is daunting, so the deterrent effect becomes an important tool.
8. While identifying and reacting to online infringement quickly can seem difficult, squashing the issue as soon as possible can save you precious time and expensive litigation. You’ll never regret taking the necessary steps to protect your company’s intellectual property.
Darin Klemchuk is a co-founder and managing partner of Klemchuk LLP. He focuses on all aspects of intellectual property withan emphasis on patent, trademark, copyright and trade secret litigation. Klemchuk has successfully handled more than 200 intellectual property disputes, including more than 20 patent infringement cases.