In this day and age, every company from the smallest startup to Fortune 500 corporations needs to be concerned about protecting its Intellectual Property rights and avoiding infringing the intellectual property rights of others. Intellectual Property rights can include the following:
- Patents on inventions;
- Trademarks that identify your company’s goods or services;
- Copyrights on artistic or literary works;
- Trade names;
- Trade dress in the form of design and shape of packaging or the product itself if it identifies the source of the goods;
- Trade secrets; and
- Domain names and websites.
Engaging IP counsel before issues arise or as soon as a potential infringement issue surfaces can be vital to protecting a company’s valuable intellectual property assets or avoiding costly infringement claims and/or the necessity of abandoning rights in favor of another user who is able to claim superior rights.
Proactively contacting IP counsel at various points can be useful in ensuring that valuable rights are not lost and in minimizing costs associated with alleged infringement in at least the following ways:
1) IP Counsel Can Help Determine What Intellectual Property Your Company Owns. Intellectual property rights are not limited to software companies or internet marketers. Virtually every business has some type of intellectual property that may be important to its business. It is vital to inventory the company’s intellectual property of your business and determine its value to your business so that rational decisions can be made about what type of investment is warranted to protect those rights.
2) IP Counsel Can Assist In Determining What Actions Your Company Should Take To Protect Its Intellectual Property Rights. Different types of intellectual property are subject to different types of protection. Securing a patent or registering a trademark may not only protect your intellectual property, but may enhance the type of damages you may be entitled to if others infringe. Legal counsel can assist you in determining what actions you can take to protect your intellectual property and the costs associated with obtaining protection for your intellectual property,so that you can weigh the costs associated with protecting your IP against the potential for infringement without protection.
3) IP Counsel Can Help You Determine Whether Your Business Activities Might Infringe On The Intellectual Property Rights Of Others. Proactively looking at these issues before you invest in advertising and to establish goodwill, and before someone claims infringement, could save your business valuable time and money.
In addition, IP counsel can help guide you in educating your employees to avoid the potential for infringement. IP counsel can help set up procedures for alerting management before infringing activity takes place. For example, some employees may believe that it is permissible to use information, pictures or diagrams found on the internet, but that is not always the case. IP counsel can help your company set up screening procedures to minimize the chance that employees infringe.
4) Consulting With IP Counsel If Someone Is Infringing Your Company’s Intellectual Property Rights Can Protect Against Waiver. It is not always a good business decision to pursue every instance of potential infringement of your intellectual property rights. However, there are circumstances in which the failure to enforce your company’s rights in the face of known infringement may result in a waiver or loss of those rights or the ability to enforce your rights against subsequent infringers.
5) Consulting IP Counsel As Soon As Anyone Accuses Your Company Of Infringement Is Usually The Most Efficient And Effective Strategy. By responding to such allegations before consulting with counsel you may inadvertently admit facts or waive rights. Some types of infringement may trigger insurance coverage under the company’s commercial liability coverage, which might be forfeited if proper notice is not given. IP counsel may also be able to advise whether a proactive suit might be beneficial, for example to secure a favorable forum, as opposed to waiting to be sued by the party alleging infringement.
Anita Fox is a shareholder in the Lansing, Michigan office of Fraser Trebilcock, and is the Chair of the firm’s Intellectual Property Department. Over the past three decades, Anita has managed complex cases in federal and state courts in Michigan and nationwide, spanning from coast-to-coast and in more than 20 states. For more information or to discuss your company’s needs, please contact Anita at firstname.lastname@example.org or at 517.377.0837.