Help, Someone Stole My Idea! Now What?
Intellectual Property Blog December 6, 2018
Imagine you are a fairly new business, about two years old, selling handmade household wares. You’re cruising the internet, perhaps Etsy or Pinterest, when a familiar product catches your eye. Or, perhaps you receive a text from a friend who is at a local county fair or festival. You become upset, as low and behold, there is your product – but it’s not being sold by you!
What do you do now?
First, there is an important distinction that needs to be made between an idea and an actual product, trademark, or process. Intellectual property law does not protect ideas that are still contained in your head. Copyright, trademark, and patent law all require you to put your ideas into some tangible form, whether you create a product, write a book, perform a song, create and use a logo, or register your invention.
Happening to have the same idea as someone else does not constitute infringement. However, if you did reduce your idea to a tangible form, and especially if you registered it, then the analysis changes: it is possible that you are experiencing infringement if you’re in one of the situations above.
The following steps can help alleviate the stress of finding out someone is using your intellectual property without your permission and prevent it from happening in the future:
- Document the alleged infringement: Be it a picture at the craft fair, a screenshot of a webpage, or the product itself, be sure to document the infringement as soon as you discover it.
- Contact an intellectual property attorney: The circumstances surrounding the infringement of your IP could be simple, such as the person was unaware you existed, or could be more complex, such as the person is trying to piggyback off of your brand. Either way, it is best to consult an IP attorney prior to taking any action. In some instances, you may be unwittingly infringing against them! Your attorney will help make those determinations and can save you both money and heartache.
- Send a cease and desist letter: If the infringement situation is fairly simple and your attorney agrees that your IP has indeed been infringed upon, you should send the alleged infringer a cease and desist letter. This puts the alleged infringer on notice of the issue and gives it a chance to rectify the situation or provide a reason for the use. This also saves you from instituting an unnecessary, costly lawsuit. Most reasonable people will recognize their mistake and cease use of your IP without further incident.
- Protect your IP in writing: When working with designers, manufacturers, consultants, and other independent contractors, make sure you are protecting yourself and your IP through written agreements. Agreements with independent contractors should specify that the IP created by that person or business is a work for hire and belongs to you. Agreements with manufacturers should specify that the IP belongs to you and you are granting that manufacturer a license to use it for limited purposes.
- Register your IP where appropriate: In some instances, you may not need to register your IP on a federal level. Common law or trade secret protection may be enough. In your consultation with your IP attorney, you can discuss whether you have the right amount of protection in place.
There is no way to stop someone from infringing on your IP altogether. However, these steps will mitigate the damage done.