Should I try to settle or go to trial?
The answer depends on the strength of the case, the potential damages, the cost of litigation, and the strategic value of the IP right at issue. Many IP disputes are best resolved through negotiation or mediation, but when settlement cannot achieve a fair outcome, trial provides the definitive resolution.
Can I get an emergency court order to stop infringement?
Yes. Temporary restraining orders and preliminary injunctions are available in federal court when the IP owner demonstrates a likelihood of success on the merits, irreparable harm, a favorable balance of hardships, and that the injunction serves the public interest.
What damages are available in IP cases?What damages are available in IP cases?
Damages vary by IP type but generally include compensatory damages (lost profits, reasonable royalty, or actual damages), the infringer’s profits, enhanced or exemplary damages for willful conduct, statutory damages in trademark counterfeiting and copyright cases, and attorney fees in exceptional cases.
How long does IP litigation take?
Federal court IP litigation typically takes one to three years from filing through trial. TTAB proceedings take 12 to 24 months. PTAB proceedings take 12 to 18 months. UDRP proceedings take approximately 60 days. Many cases settle before trial.
Where are IP cases litigated?
Most IP cases are litigated in federal district courts. Additional forums include the TTAB (trademark registration disputes), the PTAB (patent validity challenges), the ITC (imported infringing products), and UDRP proceedings (domain name disputes). The choice of forum depends on the type of dispute and the remedies sought.
Who owns the copyright when I hire someone to create content?
If the creator is an employee working within the scope of employment, the employer owns the copyright as a work for hire. If the creator is an independent contractor, the contractor generally owns the copyright unless there is a written work-for-hire agreement covering one of the nine statutory categories or a written assignment of rights.
What is fair use?
Fair use permits limited use of copyrighted material without permission for purposes such as criticism, comment, news reporting, teaching, and research. Courts evaluate four factors including the purpose of the use, the nature of the work, the amount used, and the effect on the market. Fair use is determined case by case.
What are statutory damages?
Statutory damages range from $750 to $30,000 per work infringed, or up to $150,000 for willful infringement. They are available only when the copyright was registered before infringement began or within three months of first publication. Statutory damages eliminate the need to prove actual monetary loss.
What is the DMCA takedown process?
The DMCA allows copyright owners to send a formal notice to an ISP or platform requesting removal of infringing material. The provider must remove the material promptly to maintain safe harbor protection. The process is fast and cost-effective for addressing specific instances of online infringement.
Do I need to register my copyright?
Registration is not required for copyright to exist, but it is required before filing an infringement lawsuit for works of U.S. origin. Timely registration also enables statutory damages and attorney fees, which are often essential for practical enforcement.
