How to Prove Intellectual Property Theft

Your intellectual property (IP) is the foundation of your business at large. It establishes a brand and allows your company to profit from it. In order to protect your IP from theft and fraud, the United States has a set of laws that legally allow you to retain the rights of your own concepts.

Here is what you need to know about IP law and how to prove theft.

[Read: Everything You Need to Know About Intellectual Property]

Understanding your rights

There are many different types of intellectual property that are at risk of being stolen or used unlawfully. To know whether someone has violated your IP rights, you must first identify the type of IP and any corresponding rights.

The most common types of IP include:

• Patents provide inventors the exclusive rights to control the manufacturing, use and sale of their inventions. Currently, U.S. patent laws last twenty years from the time of the original application and you can use our guide to learn how to apply.
• Trademarks are words, phrases, logos, symbols or designs that are used to distinguish a product or company from one another. If you have not trademarked your business, it can be difficult to prove copyright infringement in a court of law. They can be registered with the U.S. Patent and Trademark Office.
• Copyright is the exclusive and legal right of ownership for original intellectual and creative materials. Examples include literature, music, film and artistic works such as paintings, poems and sculptures. Copyright law does not protect against ideas, facts, systems or methods of operation.
• Trade secrets are pieces of information that are valuable to the creation of your product, process, or business that are not public. You can prevent others from disclosing this information with a nondisclosure agreement.

[Read: What Are Trade Secrets, and How to Protect Them?]

How to prove IP theft

Do you suspect someone is benefitting from unauthorized use of your IP and infringing on your rights? Here are some steps to take in order to identify and prove theft:

• Take note of who has access to your IP. Have you recently partnered with another business or hired a freelancer who has access to confidential materials? To start the process, identify who has access direct to your IP, who could benefit from its use and the timeline in which they had access to it.
• Document suspected infringement. Establish the IP theft by documenting the means and methods of its use. Take pictures, capture online screenshots, collect samples, save web addresses and preserve any proof for potential legal action. This is perhaps the most important step, as the information you provide will help you and your legal team develop a case.
• Calculate and record how much the theft has cost you. Calculate from the time it was established to when you pursued legal action. As your case may be ongoing, remember to continue to your calculation.
• Seek legal help. If you believe you have a legitimate case, contact an attorney to proceed with an infringement case. They can send a cease and desist to the wrongful party and guide you through the steps to bring legal action against the defender.

[Read: Business Insurance 101: Everything You Need to Know to Choose the Right Policy]

Determine if the party is protected under Fair Use

A defense the opposing party may claim is that they are using your intellectual property in fair use. Section 107 of the Copyright Act states that certain types of usage, such as criticism, comment, news reporting, teaching, scholarship and research, may qualify as fair use. There are four factors in determining if something is protected under fair use:

• Purpose and character of the use: If the party is using the copyrighted work for noncommercial and nonprofit educational uses, then it may be determined that the usage is fair. This is not an umbrella defense and courts will balance the purpose with the factors below as well.
• Nature of the copyrighted work: The type of work that is being used is also a factor in determining the validity of its usage. A creative work, such as a book, play or movie, is less likely to be considered fair than that of a factual work, such as a news article or technical journal.
• Effect of use on the market: The court will determine to what extend the unlicensed use hurts the market for original owner’s work. They will determine if sales have been displaced and the hit the business could take of the usage became widespread.
• Amount used: Another factor is how much of the work was used in relation to the copyrighted work as a whole. If a small clip from a movie is used for a criticism relative to the whole film being used, that may fall under fair use.

Start collecting proof of theft and contact an attorney immediately if you think your IP is being used improperly without your consent. Partnering with legal representation will get you a conclusive outcome and help you to protect your IP in the future.

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