Infringement Defense

The attorneys at Greenberg & Lieberman practice intellectual property law all day. Whether you are seeking protection against someone who is infringing on your rights, or if you find yourself the target of a claim of infringement, we can provide the legal expertise you need. Federal litigation is complicated and can be expensive. Whether you are in the offensive or defensive position, ignoring a claim will make any action cost more.

Greenberg & Lieberman will research the infringement claim and make sure you have the right to protect your property. Sometimes, even with the best of intentions, people make mistakes. How many times have you had a great idea only to find out that someone else had the same one?

If you receive a "cease and desist" letter claiming you have infringed on a copyright, trademark or patent, take this matter seriously but don't assume you're in the wrong. Just because a letter comes from an attorney does not mean that the claims in the letter are true. Let us review the claims. Relying on attorneys who are unfamiliar with intellectual property law can hurt you, your business, your reputation and your pocketbook.

What defense do I have against an infringement claim?

A number of defense exist against a claim of infringement, including, but not limited to:

First In Time

You invented the ultimate mousetrap or wrote that Pulitzer Prize winning novel first.
Perhaps your idea was first of it's kind, but what if you hadn't patented it yet? In the United States, the winner is the person who can prove he or she invented something first (although the law is changing), not who filed for a patent first. While filing for a patent makes it easier to win these kinds of cases, the law recognizes the rights of the initial inventor (although the law is changing). And that novel? Copyright attaches the minute an original work is put into a tangible expression, but proving you did so first is another matter. Just because you didn't register a copyright doesn't mean you can't flex your legal rights.

Fair use is the most common defense for copyright material.

In the United States, some material can be copied without permission, such as a student using information from published material for scholarship. A trademark or other symbol may be used for something other than it's original intent, so that the consumer would never be confused. Or the person using the trademark might only make nominative or minimal use of it.

Public Domain

Public Domain covers material, art work and the like that has become a part of the culture and where no copyright law currently exists to limit its use. All government publications are part of the public domain. Any material in the public domain can be used or copied without a problem. Lets us help you figure out if the material you want to use is in the public domain.

Parodies

A parody happens when someone pokes fun at something. For instance, a cigarette smoking bear in a tilted fire warden's hate might be a parody of Smokey, the fire fighting bear icon, or it might be an infringement, depending on the context and other factors. The creator of the parody is commenting on the work itself or on something related to it. Some parodies are allowed if they are not being used to make money. Here, the court weighs the right of Freedom of Expression against the rights of the intellectual property owner.

But I'm CEO of a company. Why should I worry?

Officers, directors and other representatives of corporations can be accused of copyright infringement even if they didn't do it themselves. Allegations of infringement are serious business and must be investigated thoroughly. The corporation should have policies and procedures in place to insure against infringements. Most importantly, when a company is accused of infringing on a intellectual property rights, they should consult with an outside attorney who is an expert in that field.