If you’re looking to protect your valuable idea, make sure to check out Part I of this series, found here.
But, what happens when it’s already too late? You had a great idea, spent a lot of time working on it, and then you find out someone is using it without your permission! Here are some possible next steps.
- Check in… with an attorney experienced in contract and intellectual property law to evaluate your rights and potential remedies. This area can be complicated and having someone navigate the legal terrain can be crucial and time sensitive. Certain claims can only be made within a certain period of time due to the Statute of Limitations so it’s critical not to sit on a potential claim if it’s important to you.
- Register – It may not be too late to register your idea and receive trademark or copyright protection. Trademarks are names, logos, slogans, symbols and other terms used to identify the source of a particular service or good. Copyright grants the creator of an original creative work (such as a song, film, photo, design, or script), certain exclusive rights. Without federal registration, trademarks and copyrights may still have “common law” protection. But this level of protection is quite limited. Federal trademark and copyright protection enable you to receive a larger payday when someone steals your idea, making you extra prepared in case someone steals it again. You may register a potential trademark with the United States Patent and Trademark Office and a potential copyright with the United States Copyright Office.
- Send a Cease & Desist Letter – Sometimes also referred to as a “Demand Letter”, a cease and desist letter is a good first step to warn the other party that they’re using your material, and to demand that they immediately stop. The letter outlines your potential claims against the other party such as Copyright Infringement, Trademark Infringement, Breach of Contract, Breach of Implied Contract, and Misappropriation of Trade Secrets. Misappropriation of Trade Secrets occurs when somebody takes your commercial method or compilation of information not generally known by others (for example, a secret recipe), through fraud or theft, and uses/shares it without your permission. Trade secrets are protectable when you’ve made reasonable efforts to keep the information secret.
The C&D letter also acts to notify the infringing party of the potential ramifications of failing to adhere to the demands, i.e.: stop it, pay up or get sued! Sometimes, the infringing party has no idea it’s using your material and will cooperate promptly. For parties that don’t play as nicely, the C&D Letter can lay a foundation for the negotiation of a settlement or an actual law suit.
- Initiate Legal Action – If your idea relates to an original piece of work such as a book, song, screenplay, photograph or artwork, you may be able to sue under common law copyright infringement. A non-registered common law copyright is automatically granted to the author or creator of such work. This also applies to any incomplete work; even if you have a few pages of a book written, you have a non-registered copyright in those few pages. To win a copyright infringement action, you must prove that you are the author of the copyrighted work, that the work was copied by the alleged infringer, and that you have been harmed in some way due to the wrongful copying of your work. Note that copyright infringement cases can be difficult to win and without a federal registration, it can be an expensive and uphill battle. That’s why some successful lawsuits involving a stolen idea for a TV show and a stolen idea for a movie dealt with the claim Breach of Implied Contract instead of focusing on copyright infringement alone.
If your idea pertains to a name, logo or design, you may have a common law trademark, and you may be able to sue for trademark infringement. Without federal registration of your trademark, you as the trademark owner must prove that you have used the mark in connection with the sale of a product or service, that another person is using a very similar mark and that the other mark has caused confusion among consumers. The most common form of relief is an injunction, which is a court order prohibiting further use of the mark. While suing for common law trademark infringement may be difficult, there may be other claims that you can make, based on the facts, such as unjust enrichment or unfair competition.
It is important to keep in mind that all of these claims are much stronger when the underlying idea has federal protection or a valid and enforceable contract. With certain protections in place, you can rest easy that your idea will not be stolen, and that if it is, that you’ll have strong remedies.
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This Blog is made available by Romano Law PLLC for general informational and educational purposes only, not to provide specific legal advice. By using this Blog you understand that there is no attorney client relationship between you and Romano Law PLLC or any individual contributor. You should consult a licensed professional attorney for individual advice regarding your own situation.