Posted On June 27, 2022,

WHAT IS INTELLECTUAL PROPERTY?

The term intellectual property refers to an individual’s or a business’ ideas and creativity. The rights around intellectual property can be around branding, a design, a book, an invention, or music and song lyrics, to name a few instances. The rights around intellectual property allows the creator to control the use that other people can do with their creativity or product. For example, when it comes to music, a creator can demand royalties when their music is played for public use, such as on a TV show or when featured as part of an advertisement.

Under criminal law, there can be certain uses of copyright, or things like trademarks and registered designs, that when used without the permission of the owner, can lead to a criminal offense. You might recognize the terms copyright infringement, piracy, trademark infringement or counterfeiting, but this is what they are all referring to.

When it comes to intellectual property theft, it is a crime, but not a crime that leaves people physically hurt or without physical belongings. However, it is something that is becoming more and more common and it can impact all different businesses and all different walks of life. You can find pirate, fake, or copied goods all over, and intellectual property theft can impact large businesses and small businesses alike. It can also impact supply chain, online sales, door-to-door sales, and retail store sales.

HOW IS INTELLECTUAL PROPERTY STOLEN?

There are a number of ways that intellectual property can be ‘stolen,’ resulting in intellectual property theft. One of the first is that it could result from a patent infringement. This will be where there is a patent on a product and the patent is used without the permission of the owner of the patent. Similarly, trademark infringement is a way to steal IP, and refers to when a third party uses for financial gain, competing or similar goods that are the same as the original with the trademark. This can lead to confusion for consumers as they will be unlikely to tell the difference. Copyright infringement is when music, a book, or a film, as examples, are reproduced, even in part, with many copied elements from the original.

A trade secret violation is not always protected by certain legislation, but they are usually covered by a non-disclosure agreement between two groups. If one of the groups decides to share the information, then they have violated the terms of the non-disclosure agreement, and can be considered theft. Another way intellectual property can be stolen is through counterfeit. This isn’t trying to copy a product and pass it off as something else, but rather, make the same product but claim it is the original.

HOW IS INTELLECTUAL PROPERTY INFRINGEMENT PROVEN?

One of the first steps in proving IP infringement is to confirm that there is an owner of the IP in the first place. This could be shown through documents as evidence, and when proven, will make things much easier for the owner. If the IP is registered, this is a simple process. Where the IP isn’t registered, there needs to be enough evidence to show the case of theft, showcasing the original and when it was created. If the copyright has been sold or transferred to another, then this needs to be shown that they now have the copyright, even if they weren’t the original creator or author.

WHAT ARE THE CONSEQUENCES OF INTELLECTUAL PROPERTY THEFT?

There are consequences of IP theft, starting with financial penalties and paying damages for the theft or infringement. This will happen when a plaintiff can show the financial loss that has impacted them as a result of the IP theft. This can’t always be proven, so in some jurisdictions, a set royalty fee is paid instead of damages. There can also be lump-sum fines that defendants need to pay depending on statutory judgments.

For the majority of IP owners, they feel it is more important to stop the IP theft or infringement, rather than get the money for damages. That is why seeking to get an injunction to prevent any more unlawful infringement and not claiming for damages is often a course of action that is a popular choice.

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