IPR infringement refers to the unauthorized use, duplication, or sale of materials or products that are legally regarded as protected intellectual property (IP). According to federal and state law, the definition of infringement depends on the intellectual property right (IPR) that is being disputed. Since copyrights and patents are under the protection of the federal law, violation of these rights is defined by the same laws. These statutes generally define IPR as the unauthorized production, use, or sale of protected IP.

State Laws Protecting IP

Trademarks and trade secrets are both under the protection of federal and state law, which is also known as common law. Due to its hybrid nature, IPR can be determined by both federal and state law. Federal laws pertaining to infringement remain the same throughout the country, but state laws may vary from one state to another.

Rights of an IP Owner

An IP owner generally has the right to file a lawsuit against any party that infringes his or her IP. Since federal laws have been established to protect every type of IP, most IPR cases are reviewed in federal courts. Those who are found guilty of infringement may face multiple penalties that serve different purposes.

Violation of IPR

Infringement of IPR with regard to copyrights, patents, trademarks, and trade secrets may be a breach of civil or criminal law. The definition of infringement depends on the kind of IP involved, the nature of the action, and the jurisdiction.

Remedies for IPR

  • Payment of damages – Awarding damages to the IP owner is the most common remedy for IPR. In general, a money judgment will be awarded to compensate the IP owner for the damage he or she has suffered, such as lost claims, lost sales, or lost reputation.
  • Enhanced damages – In some situations, a court may award damages beyond the damage sustained by the IP owner. Known as enhanced damages, these damages serve the purpose of punishing the infringing party. However, they are uncommon, because they are meant to punish parties that have engaged in especially bad conduct.
  • Payment of legal fees and costs – A court may also require the infringer to pay the costs the IP owner has incurred in litigating the case. For instance, according to the Patent Act, a court may order the losing party to pay legal fees in an extraordinary case. Similar to enhanced damages, such damages are uncommon, but they can serve as an additional penalty.
  • Injunction preventing further infringement – Sometimes, a court may order the infringing party to refrain from using, making, or selling the protected IP. Injunctions are least commonly awarded in patent infringement cases, where courts usually prefer to order the infringing parties to pay ongoing royalty fees to the IP owners.
  • Destruction of protected materials – A court may also order the infringing party to destroy the protected material. One good example of this is in a case involving trade secret infringement. If an infringing party is illegally using, say, a protected customer list, a common remedy is to force him or her to destroy the list.
  • Criminal charges – An IP theft case may lead to criminal charges. According to the Economic Espionage Act, certain kinds of trade secret theft are considered a federal crime. Many states also regard trade secret theft as a crime. Examples of criminal IPR infringement include piracy and counterfeiting. Consumers who find pirated or counterfeited products online can report to the Internet Crime Complaint Center of the Federal Bureau of Investigation (FBI). If the products come from a foreign country, a report can be made with the National Intellectual Property Rights Coordination Center (NIPRCC) or U.S. Customs and Border Patrol.

Example of an IPR Infringement Case

IPR cases seldom appear on the front pages of newspapers, but they sometimes do. Several years ago, Disney sent Cease and Desist letters to daycare centers after realizing that they painted their walls with images of its famous characters, such as Mickey Mouse and Goofy. These characters are undoubtedly Disney's protected trademarks. Through the Cease and Desist letters, the animation studio requested the daycare centers to stop infringing its trademarks. Such letters can be the initial stages of a lawsuit.

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