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Avoiding Infringement Problems

As an entrepreneur, you put a lot of time, energy, and effort into your services and products. It's natural to want your original works protected. Small business owners have to make sure their creative works are original or use disclaimers indicating who the original works of authorship belong to. Infringement occurs when a person or business uses or diminishes the value of another's protected intellectual property in some way.

You may have to pay attorney's fees and damages to the person whose intellectual property work you, intentionally or unintentionally, copied. Learn how to avoid patent infringement, copyright issues, plagiarism, and trademark infringement in this article.

Patents

Patents are intellectual property protection inventors secure when they create a new invention. A patent gives the inventor the exclusive right to use the registered design, utility, or plant patent. Startups often get patents on their products to increase their company valuation and stop "copycat" production of their inventions by competitors.

1. Types of Patents

There are three types of patents. Each is unique in how an entrepreneur could infringe on their intellectual property rights. This includes how another person or business could copy them and how long patent protection lasts.

  • Design patent: Protects the appearance of products. Design patents before 2014 last 14 years from an application filing. Any patents filed after 2014 will last for 15 years. An example of a copyrighted design patent is the original glass Coca-Cola bottle shape.
  • Utility patent: Covers how products are made, work, or used. Their owners can stop their inventions' unauthorized use (called the "practice") for up to 20 years from their patent filing date. An example of a utility patent is the software in your iPhone detecting an idle screen that causes it to turn the screen off.
  • Plant patent: Covers asexually reproduced, discovered, invented, or artificially grown plants and flowers. These plants would not occur in nature on their own. Breeding or human interaction cause these plants to exist. That's why they get intellectual property protection. A plant patent lasts the life of the plant plus 20 years. An example is a chrysanthemum plant named Organdy.

2. Preventing Patent Infringement

The only way to discover blocking patents is to search the U.S. Patent and Trademark Office (PTO) database. Just because nothing like your business's product is on the market doesn't mean it, or something too similar, isn't already patented. Although searching back up to 20 years is all that's needed to ensure your business isn't infringing on a patent, it may be worth searching further back. If an older patent exists covering all or part of the subject matter of your company's product, it is a good indicator that the component is safe to manufacture. Consider applying for a patent if your company's product is novel.

Since intellectual property protection, especially patent law is complicated, you should seek legal advice from a patent attorney before making any decisions. Copying a patent is not the only way a business can infringe on a patent. Knowingly or unknowingly, incorporating a patented invention is an infringement, too. Practicing or incorporating a design sufficiently similar to a patented invention can also get you into legal trouble.

A patent owner can stop your business from practicing or using the patent ("injunction"). They can also sue you for statutory damages. In some situations, an injunction can be more expensive than potential damages. This may mean legal fees, retooling costs, and inventory loss.

Trademarks

Trademarks show the source of a product, indicating a brand. They include words, slogans, logos, sounds, three-dimensional symbols, scents, and textures.

1. Types of Trademarks

Trademarks can have intellectual property protection through state law or federal law. Registration is unnecessary for common-law rights to protect their holders, but federal statutory protections only apply to federally registered trademarks. Federally registered marks bear the registered trademark symbol, ®. An unregistered mark or a state mark uses "TM" or "SM" (service mark).

Federal trademark protection lasts for 10 years. Unlike patents, where you must submit a new patent or design for protection beyond the initial term, trademarks can be renewed "as is" for 10 more years. This can continue without limitation. The mark must still be active in commerce for this to be available.

2. Preventing Trademark Infringement

Trademarks can be harder to track down than patents. Before you start using a mark, here are a few steps that may help keep you from infringing on someone else's copyrighted material:

  1. Do a quick internet search using a search engine to find businesses using the name or slogan. Search social media where companies may advertise or promote their products.
  2. Check state and federal trademark registers. You will want to pay close attention to the states you operate in to see if anyone has any superior rights to you.
  3. Do a search on the USPTO database for any federally protected marks. When searching the database, know that if you type "Mcdonald's," only "McDonald's" spelled like that will appear. If someone has registered "MacDonalds," it will not appear on a basic search. This is why you should seek legal advice from a licensed trademark attorney who can search and analyze copyright law.
  4. Use the likelihood of confusion checklist to see if your name or mark has a chance of infringing on another small business. The U.S. Patent and Trademark Office (USPTO) and courts use the likelihood of confusion test to see if the mark is similar enough to another that it is likely to cause consumer confusion. A mark is similar if it sounds or looks like another mark of the same goods or services, even if it isn't exact. For example: "Blue Bell" is federally trademarked for ice cream. Another ice cream company named "Blew Bell" could be copyright infringement as it would likely confuse a consumer. Yet a referee whistle company could use "Blew Bell" without infringing on Blue Bell's rights.

One of the frustrating things about trademark searches is that trademark infringement can be pretty remote. Nothing resembling another business's trademark should be used without the owner's permission ("license"). An exact copy is unnecessary to infringe a trademark.

A thorough search by a licensed trademark law attorney will help your business understand all the possible risks. It can also help you know if you need a new brand name or if you should save funds for a possible rebrand in the future.

A trademark owner can:

  • Force you to change your business name
  • Receive an injunction to stop you from using the name
  • Demand the destruction of all products with that name or mark on them

Copyrights

The Copyright Act and the U.S. Copyright Office govern copyright laws in the United States. Original works in a tangible medium, like art, novels, motion pictures, screenplays, and sound recordings, are copyrightable. This even includes social media content by content creators. Copyrights cover derivative works associated with them, too. For example, J.K. Rowling owns "Harry Potter" and can make books and TV shows with him without needing new copyright registrations.

Preventing Copyright Infringement

Copyright infringement is rarely unintentional. You may know it as plagiarism. Copying and pasting text from a website you do not own to your website is copyright infringement, even if it is not federally copyrighted. There are some exceptions, like free-use websites like Creative Commons, which explicitly allow the public to use their work in limited circumstances. The Getty Research Institute also allows public use of their photographs.

federally-registered copyright holder can sue another for infringing on their creative work. Works in the public domain are available for anyone's use, even in commerce. Copyright owners cannot claim copyright protection against another person using their work if it is fair use. Parodies, satire, and commentary are examples of fair use.

A copyright owner can allow the use of their work in limited circumstances through a license. In those instances, a small business is not violating copyright laws because it has permission to use the copyright. You will see a disclaimer or copyright notice ("attribution") on the work that shows the copyright belongs to the holder.

Avoid Copyright Law Problems: Contact an Attorney

Intellectual property law can be confusing, particularly to new inventors and small business owners. If you have concerns about patent, copyrighted work, or trademark infringement, consider speaking with an intellectual property law attorney near you.

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Contact a qualified business attorney to help you identify how to best protect your business' intellectual property.

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