Intellectual property covers a grand panoply of creative endeavors, from mom’s “secret” chicken soup recipe to building the perfect mousetrap to creating a cure for cancer. In today’s marketplace, intellectual property can mean fortune and fame for people and encompasses four distinct fields: copyrights, patents, trademarks and trade secrets. The legal remedies available to protect, and to compensate for the unlawful use or infringement of, such interests vary according to the type of intellectual property involved.
The first type of intellectual property is copyrighted material. Originally authored works presented in some tangible form (such as books, songs, magazine articles, plays, artistic or architectural works, etc.) can be protected via copyright. Ideas and oral presentations (i.e. speeches, lectures, etc.) not reduced to a physical form (such as lecture notes), are examples of things that are not protected under copyright laws. A copyright owner can bring a federal lawsuit against anyone that reproduces, creates works that draw from the copyrighted material (a.k.a. “derivative works“), distributes, and publicly displays or performs the material without the permission of whoever holds the copyright. (Subject to a few exceptions, of course, such as the “fair use” doctrine). The copyright holder can seek actual monetary damages, if such damages can be proved, or statutorily established range of damages if actual damages cannot be proved. Furthermore, if the copyright holder wins at trial, he or she can recover their court costs and may even recoup attorneys’ fees. Likewise, the copyright holder can seize and destroy all copies of the infringing material. Moreover, certain violations of a copyright can result in the government pursuing criminal prosecution (for example, under the Digital Millennium Copyright Act), which entails potential fines and incarceration.
Another form of intellectual property are patents. Any new and useful machine, composition of matter, process or article of manufacture or an improvement of something that already exists, and is “non-obvious” (is truly inventive), can be patented. Conversely, naturally plants and animals, as well as abstract ideas, cannot be patented. Given the potential monetary value of a patented item or process, as well as the effort and expense at securing a patent with the United States Patent and Trademark Office, a patent holder can be expected to employ the full range of legal remedies to address an infringement of their patent. If someone is held liable for violating a patent, either directly or indirectly, then the patent holder can recover lost profits (along with possible pre-judgment interest) and court costs. In situations where someone willfully or otherwise violated a patent in bad-faith, the patent holder can possibly recover up to triple the compensatory damages and attorneys’ fees. A patent can also try to secure an injunction against an infringing party, such as preventing the defendant from marketing their item or process.
The third type of intellectual property are trademarks, which are symbols, devices, words or names that distinguish a person, business, or organization and its products, services or activities, (such as the famed “Golden Arches” of a certain fast-food chain) for commercial use. A person infringes on a trademark when they use a symbol, mark or other designation in such a way as to deceive, mislead or likely confuse consumers. (More importantly, willful infringement is not necessary to establish liability). Those that violate a trademark face possible federal litigation under the Lanham Act, with damages that include the recovery of lost profits, court costs, and if necessary, triple damages when regular damages are inadequate, as well as attorneys’ fees. (On the other hand, unintentional infringement may limit the monetary remedies available). If a violation diminishes a trademark’s “ability” to identify and distinguish goods or services, the trademark owner can seek an injunction to prevent the further use of the offending symbol, mark or trade name, and even have it deregistered if the offending mark was registered. Infringing items (such as counterfeit goods) can also be seized and destroyed as the result of a successful lawsuit. Note though, unlike copyrights and patents, trademarks may also enjoy the protection of certain state laws.
Finally, there are trade secrets, which is information with an economic value to a particular party derived from being kept secret, and is subject to reasonable efforts to keep the information secret. Formulas, customer lists and marketing data are examples of trade secrets. Whereas copyright and patent law address items and information already in the public domain (or soon to be made public) and are enforced exclusively via the federal courts, trade secret law shields certain kinds of privately-kept information from wrongful acquisition, use or disclosure and is typically the purview of state courts. If someone has improperly obtained, used or disclosed a trade secret, the injured party can seek monetary damages (i.e. lost profits, loss of an ability to gain a patent, the recovery of the offending parties unlawful profits, etc.), and in instances where the defendant’s behavior was willful and malicious, a court can award the injured party up to twice the actual damages. An injured party can also pursue an injunction to prevent to further use or disclosure of the information, the expungement of the information itself (that means any and all copies) and for the destruction of products derived from the infringement. Likewise, if a disclosure violated a confidentiality/non-disclosure agreement, then the aggrieved party has the option to recover their damages via a breach of contract action.
Ultimately, by deterring encroachment on a person’s creative efforts and by providing post-violation compensation and vindication, creativity and scientific exploration can be encouraged. Thus, the legal remedies afforded to intellectual property are not only germane to the financial success and historical acclaim of inventors, writers, artists and musicians, but can also benefit society as a whole.