This article features general knowledge about U.S. intellectual property rights and how to avoid problems with intellectual property law. Do not take this as legal advice as we are not lawyers. If you have any questions you should speak to a professional.
Intellectual property. It’s a dangerous phrase. It can cause a lot of confusion and could potentially cost you a lot of money. This article will break down everything about intellectual property (IP): what it is, how to protect your intellectual property, and how you could potentially use someone else’s IP.
Intellectual property is protected ideas, designs, phrases, etc. that a person, group, or company created and claimed rights to. They can claim rights through:
Copyrights protect original art in all forms. This can include visual art, literature, music, videos, and so much more.
You can’t copyright an idea though. For example, you can’t copyright cats, but you can copyright a specific style of illustrated cat.
As a print-on-demand store owner, this is the form of IP you’ll run into the most.
Trademarks protect different factors of branding. As we’ve discussed in several blog posts, brands are made up of phrases, voice/personality, logo, certain images, etc.
You may also run into issues with trademarks as a print-on-demand store owner. For example, you can’t use the Nike swoosh logo or McDonald’s golden arches on your products because they’re trademarked.
Patents cover inventions and everything that involves inventions. This can include designs, specific parts of the invention (if mechanical), and even plant patterns (if the invention is organic).
You probably won’t run into situations where a patent comes into play as often.
Trade secrets protect ownership of a specific kind of information like formulas, programs, or confidential data.
Trade secrets are also less likely to come up in print-on-demand product designs.
If people could steal each other’s IPs, the world would stop. There are so many industries that depend on IPs and the fact that they’re protected. If intellectual property isn’t protected, these industries would fall and people would lose their jobs and security.
Plus, why bother creating something new if it’s just going to get stolen?
Without intellectual property rights, no one would create anything new. That means no more art, movies, books, TV shows, inventions. Nothing!
What a boring world right?
Intellectual property law is what protects your rights as an IP holder. It has its own sets of rules and how to go about sorting out any issues with IP rights being violated.
If you’re in the U.S. you should record any U.S.-registered trademarks and copyrights with the U.S. Customs and Border Protection office. Doing this will help you not only in America but in some other countries as well.
You have a few different options that you can choose if someone is using your IP without your permission. Before you do anything, you should figure out a couple of things first.
You might think you can always sue when your IP is being used against your will, but you’d be wrong. You have to figure out if you have a “standing” to sue.
A standing is basically proving to the court that you have the right to sue and that you won’t waste the court’s time. A standing does not equal what you’re suing the other person for, instead it shows how each person stands in relation to one another.
For example, your standing would be: You (the victim) want to sue the other person (the defendant) because they’re using your IP without your permission.
You then tell the court the reason why you want to sue, which is known as an injury. This doesn’t mean a physical injury, it means that the other person’s actions affected you or your business in a negative way.
For IP issues, the injury could be that you lost sales because someone else is using your IP and stealing potential customers.
Before you decide to sue, think about what you want from the other person if you win the case.
If you want them to stop using your IP, you have a few options. You can informally ask for credit/ compensation or you ask them to stop using your IP. This is a great choice because intellectual property theft can happen by accident, and when that happens, usually the other person stops using the IP right away.
It’s best to do this in writing that way you have a record of the conversation. You can send them an email or message them through their social media pages.
If they refuse, you then send them a “Cease and Desist” letter. A cease and desist letter explains that the other person is violating your IP rights and that you want them to stop. It also lets them know what will happen if they ignore the letter and give them a time limit to fix things.
A lawyer should be the one to create and send this letter.
If they don’t stop using your IP, that’s when you take them to court.
Make sure your IP is copyright registered ASAP because you won’t be able to get damages and get attorney fees covered if the IP was stolen before the IP was registered.
A CASE act claim is for small copyright infringement claims. The goal of this claim is to have things go much faster than a traditional court case.
Just know that the person you believe stole your copyright can choose not to take part in this process. If they do, you can still take them to court through the traditional way.
You can receive up to $30,000 in damages when you win a CASE Act claim. Attorney fees can also be covered (up to $5,000), but that’s only if the defendant shows bad faith, meaning they basically didn’t follow the rules of the court.
Copyright and trademark cases are handled in federal courts and the process is the same as most court cases. Of course, make sure you and your lawyer agree this is the best step to take since it takes a lot of time and money.
One option you get through the court is getting a court order to make the other person stop using your IP. This order is called an “Injunction”.
Just know that because you ask the court for an injunction, doesn’t mean you’re going to get one.
There are three different types of injunctions: permanent, interlocutory, and interim. A permanent injunction is when you’ve proved your IP has been stolen in court and the court orders the thief to stop using your IP.
It takes time to go through all the proceedings of the court, it can take months or even years, and the other person can still be using your IP in the meanwhile.
That’s when you ask for an interlocutory injunction. This is an order for the other person to stop using your IP while the court proceedings go on. These are hard to get because you have to prove that you’ll be harmed if the injunction doesn’t go through.
An interim injunction is a temporary order that says the other person has to stop using your IP until the court makes a decision as to whether or not that person stole the IP.
Let’s say you won your case, and the other person has been deemed a thief. You find out that they made a lot of money using your IP. It would make sense that you would want to be compensated.
For copyright infringement, you can ask for “damages”, which are any losses you’ve had because of the IP theft. Damages can be lost profits, lost customers, or anything else that makes your business suffer.
You must prove that you suffered injury and that damages are needed. You can do that by showing that the other person stole customers from you, for example.
Figuring out damages can be hard and take a long time, which is another reason you’ll want a professional by your side.
You can also ask for statutory damages instead of general damages. Statutory damages are when you don’t have to prove what losses you suffered because of the IP theft. Instead, you can be entitled to anywhere between $500 to $20,000 for each piece of IP that was stolen, if it was used for commercial purposes.
Commercial purpose means that the person who was using your IP was using it to make a profit, like putting your design on products they’re selling.
For non-commercial purposes, you can get anywhere between $100 and $5,000 for all works that are stolen. Non-commercial purposes mean that the person did not mean to make money from the stolen IP.
The amount of money you get depends on a variety of factors like the good or bad faith of the defendant, how both parties act in court, and if the defendant has done this sort of thing before.
For trademarks, you can also get damages, though it’s even harder to figure out how much you should get.
Whether you mean to or not, you might be the person infringing on someone else’s IP rights. For example, you may use an image you don’t have a right to. You thought it was copyright-free, but it turns out it wasn’t. That’s an example of IP theft.
Another example could be that your image is too similar to established logos or designs. You’d get in trouble for confusing customers.
If you hire a photographer or a designer, you always have to make sure you have an agreement, in writing, that you own the rights to whatever the artist works on. If you don’t, you could be sued by that artist down the road because they’re claiming you took their work and you’ll have to prove you didn’t.
There are a few ways to easily avoid any potential IP concerns.
As mentioned before, if you work with any type of artist, make sure to have written in a contract that you own the copyright to the art that is made for you.
Contracts also work if the art is already established. Let’s say a design you want to use is copyrighted, can you still use it? Yes, if you get permission, in writing, from the copyright or trademark holder. It has to be very obvious that they said it’s okay.
Create original art, text, and anything else you need during the design process. There are some images you can use in your design without having to worry about getting in trouble. These include flags, national symbols, the likenesses of political figures, and coats of arms.
If there’s a famous picture of those things, though, don’t use the picture. While the things in the picture might be fair to use, the photo is going to be protected and you could get sued.
If you do want to use an outside source, like a copyright-free image, make sure it’s actually free to use. See if you find it on a personal website or use Google image search to trace its origins.
It never hurts to take the extra time to look.
You can also check out the U.S. Patent and Trademark Office to see if something you want to use has already been registered.
Fair use is when you can use copyright-protected material in a very specific way. You can use copyright material when creating criticism, news reporting, teaching, and research.
What does this mean for you as a print-on-demand business owner?
It means that you can create parodies of copyrighted work because that falls under criticism. You can also use quotes, as long as you properly credit the author.
This is when things get a little tricky. First, you have to figure out if you even have rights to your IP in that country. Not all countries have the same IP laws, if they have any at all.
Then you have to figure out if that country requires you to register your IP within that country for it to be protected.
For copyrights, there have been some international treaties and conventions between countries. This means many countries don’t need a registration of a U.S. copyright in order to have protection in the U.S. and vice versa.
Though there are still countries in the world that don’t have that kind of agreement with the U.S.
If you do have a case, you and your lawyer have to work with the IP laws within the country the IP infringer is in. This can get tricky so make sure you have a professional by your side.
The U.S. Department of Commerce’s Office of Standards and Intellectual Property (OSIP) will be a great help as you sort everything out.
The World Intellectual Property Organization is also a great source for figuring out IP laws in other countries.
Basically, everything we talked about before with the imagined IP thief. You could get a cease and desist letter, you may have to go to court, and you may end up having to pay a lot of money to the person who sued you. The outcome depends on your actions.
If you accidentally infringed on someone’s rights and they contact you about it. Simply apologize and take down the infringed design immediately.
Accidental or not, we don’t tolerate IP theft. If someone contacts us about their IP rights being infringed, we ask to see where their art is so we can verify that they are the rightful owner. We also ask for links to the campaign using their IP.
If it does turn out that you’re using their IP, we freeze your campaign and contact you within 24 hours. We do this because we know accidents happen.
If your campaign is frozen, you cannot do any editing to it or make money from it.
If two sellers claim the same design, we use internal tools to figure out which campaign was created first. Like when an outsider contacts us about IP theft, we will lock the campaign of the seller who put up the same IP second and let them know.
Repeat offenders of IP theft will have their store disabled within 24 hours.
If you want to make an IP theft report with us, please email legal@gearlaunch.com. To make things move faster, put a link to your campaign and the offender’s campaign within the email.
Intellectual property rights are complicated but in a weird way that’s a good thing. IP law is so strict to protect you and others.
If you take a few extra minutes to do research when using any art that isn’t made by you, you won’t have as hard of a time. If you want to avoid IP concerns entirely, create all the designs yourself or hire a designer and have a well-written contract.
If you’re really worried, print out this post and keep it nearby for when you have questions.
Remember that if you don’t own it, can’t prove that it’s copyright free, or that you have a contract or written consent for use, don’t use it.
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