Intellectual Property Litigation

Intellectual property can be among a person’s or company’s most valuable assets. A brand may represent years of customer trust. Creative works may reflect substantial time, skill, and investment. Trade secrets may provide a critical competitive advantage. Technology, product designs, software, and inventions may form the foundation of an entire business. When another person or business copies, misuses, discloses, counterfeits, or claims ownership of intellectual property, the resulting harm can spread quickly. Online infringement may reach thousands of customers before the owner discovers it. A former employee may transfer confidential information to a competitor. A business partner may claim sole ownership of jointly developed material. A competitor may adopt a confusingly similar name or publish false statements about another company’s products.

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The Westmoreland Law Firm  represents individuals, creators, professionals, entrepreneurs, and businesses in intellectual-property and related commercial disputes involving:

• Copyright infringement

• Trademark and service-mark infringement

• Trade-dress infringement

• Counterfeiting

• Trade-secret misappropriation

• Patent and invention disputes

• False advertising

• Unfair competition

• Licensing and royalty disputes

• Ownership and authorship disputes

• Unauthorized use of names, voices, photographs, and likenesses

• Domain-name and cybersquatting disputes

• Confidentiality and nondisclosure agreements

• Employee and independent-contractor disputes

• Online infringement and digital-content misuse

• Cease-and-desist demands

• Emergency injunctive relief

• Defense against unsupported infringement claims

 

Intellectual-property litigation requires prompt action, careful ownership analysis, preservation of electronic evidence, and a strategy tailored to the asset, marketplace, and business objectives involved.

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WHAT IS INTELLECTUAL PROPERTY?

Intellectual property refers to legally protected intangible assets, including creative expression, source-identifying marks, inventions, confidential information, and certain commercial identity rights.

The principal categories include:

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Copyrights

Copyright protects qualifying original works of authorship fixed in a tangible medium. Protected works may include:

• Written materials

• Books and articles

• Photographs

• Illustrations

• Graphic designs

• Music and sound recordings

• Videos and films

• Websites

• Software and source code

• Architectural works

• Advertising copy

• Training materials

• Presentations

• Product manuals

• Choreography

• Other creative content

 

Copyright generally protects original expression rather than abstract ideas, facts, procedures, systems, or methods of operation.

 

Trademarks

A trademark identifies and distinguishes the source of goods. A service mark performs the same function for services.

Protectable marks may include:

• Business names

• Brand names

• Product names

• Logos

• Slogans

• Symbols

• Packaging

• Distinctive colors

• Product configurations

• Other source-identifying features

 

Trademark law is primarily concerned with whether a use is likely to cause confusion concerning source, affiliation, sponsorship, or approval.

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Trade Secrets

Trade-secret law protects valuable information that:

• Is not generally known;

• Derives actual or potential economic value from remaining secret; and

• Is subject to reasonable efforts to maintain its secrecy.

 

Trade secrets may include:

• Customer information

• Pricing models

• Business plans

• Formulas

• Manufacturing processes

• Software code

• Algorithms

• Technical specifications

• Product-development information

• Marketing strategies

• Vendor terms

• Financial models

• Internal procedures

• Research data

• Confidential compilations of information

 

Information does not become a trade secret merely because a business labels it confidential. The information and the measures used to protect it must be evaluated.

 

Patents

Patents may protect qualifying inventions, processes, machines, manufactured items, compositions, and ornamental designs. Patent disputes may concern:

• Unauthorized manufacture or sale

• Unauthorized use of a patented invention

• Importation of infringing products

• Induced or contributory infringement

• Inventorship

• Ownership

• Licensing

• Validity

• Enforceability

• Royalty obligations

• Product design and claim interpretation

 

Patent litigation is distinct from applying for or prosecuting a patent before the United States Patent and Trademark Office.

 

Rights of Publicity

California law protects against certain unauthorized commercial uses of a person’s:

• Name

• Voice

• Signature

• Photograph

• Likeness

 

These rights may arise when a business uses a person’s identity to advertise, promote, or sell goods or services without legally sufficient consent.

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COPYRIGHT INFRINGEMENT

Copyright infringement may occur when a person, without authorization, violates one or more exclusive rights belonging to the copyright owner. Those rights may include the right to:

• Reproduce the work

• Distribute copies

• Publicly display the work

• Publicly perform the work

• Prepare derivative works

• Authorize others to engage in protected uses

 

Examples of potential infringement include:

• Copying photographs from a website

• Republishing articles or written materials

• Using illustrations without permission

• Reproducing website content

• Copying source code

• Uploading copyrighted videos

• Distributing unauthorized copies

• Using music in commercial content without a license

• Copying substantial portions of a book, manual, or course

• Creating an unauthorized adaptation

• Using protected advertising materials

• Removing or altering copyright-management information

• Continuing to use licensed content after the license ends

• Exceeding the permitted scope of a license

 

Copyright infringement does not require exact duplication. A work may infringe when protectable elements are substantially similar, depending on the work and governing legal standards. Independent creation is not infringement, even when two works contain similarities. Copyright generally does not give an owner exclusive rights over facts, ideas, concepts, styles, or common elements that are not protectable expression.

 

WHO OWNS A COPYRIGHT?

The person who creates an original work generally begins as its copyright owner, but ownership may be affected by:

• Employment relationships

• Work-made-for-hire rules

• Written assignments

• Licensing agreements

• Independent-contractor agreements

• Joint authorship

• Corporate formation documents

• Partnership agreements

• Estate transfers

• Divorce or dissolution proceedings

• Bankruptcy

• Implied licenses

 

Paying for a work does not necessarily transfer copyright ownership. For example, a company that pays an independent contractor to design a logo, photograph a product, develop software, or prepare written content may not own every copyright unless the parties’ agreement and applicable law establish an effective transfer or work-made-for-hire relationship. Copyright transfers generally should be documented in a signed writing. Ownership disputes should be addressed before the work is distributed, licensed, sold, or incorporated into a larger product.

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COPYRIGHT REGISTRATION

Copyright protection may arise when a qualifying work is created and fixed, but registration can provide substantial litigation benefits. For many United States works, registration or preregistration is generally required before filing a federal infringement action. The timing of registration may affect whether the owner can seek:

• Statutory damages

• Attorney’s fees

• Litigation costs

• Evidentiary presumptions associated with timely registration

 

A copyright owner who discovers infringement should not assume that it is too late to register. Registration may still be important even when some infringement has already occurred. The filing date, publication date, first infringement date, registration date, and identity of each work should be evaluated promptly.

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COPYRIGHT DEFENSES

Not every use of copyrighted material is unlawful. Potential defenses may include:

• The material is not copyrightable

• The plaintiff does not own the copyright

• The defendant independently created the work

• The allegedly copied elements are ideas, facts, methods, or common material

• The use was licensed

• The license permitted the challenged conduct

• The owner granted an implied license

• The use qualifies as fair use

• The claim was filed too late

• The owner abandoned or transferred the relevant rights

• The similarities are not legally actionable

• The defendant did not copy the work

• The work is in the public domain

 

Fair use requires a fact-specific analysis. Labeling a use educational, nonprofit, transformative, or commentary does not automatically establish fair use. Likewise, giving credit to the original creator does not necessarily authorize the use.

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TRADEMARK AND SERVICE-MARK INFRINGEMENT

Trademark infringement may occur when someone uses a mark in commerce in a manner likely to cause confusion, mistake, or deception regarding:

• The source of goods or services

• Affiliation between businesses

• Sponsorship

• Approval

• Licensing

• Endorsement

• Business association

 

Potential infringement may involve:

• A confusingly similar business name

• A competing product with a similar name

• Copying a logo

• Using another company’s mark in advertising

• Selling unauthorized branded merchandise

• Operating a misleading social-media account

• Using another company’s mark in a domain name

• Imitating product packaging

• Misleading customers into believing two businesses are affiliated

• Continuing to use a mark after a license or franchise relationship ends

• Using a former employer’s marks after separation

• Diverting online traffic through confusing branding

 

The analysis generally considers the marks, goods or services, customers, marketing channels, evidence of actual confusion, and surrounding commercial context.Two marks do not need to be identical to create actionable confusion.

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REGISTERED AND UNREGISTERED MARKS

Federal trademark registration may provide important benefits, but registration is not always required before a business can assert trademark rights. Rights in an unregistered mark may arise through actual commercial use. The geographic scope and strength of those rights may depend on:

• When use began

• Where the mark was used

• The goods or services associated with it

• The mark’s distinctiveness

• Advertising and sales

• Consumer recognition

• Whether another party used or registered a similar mark first

 

A federal registration may provide:

• Nationwide legal presumptions

• Public notice of the claim of ownership

• Access to federal remedies

• Enhanced remedies in certain circumstances

• Customs-recordation opportunities

• Additional benefits after continued registration

 

Trademark ownership is generally based on lawful use and priority, not simply who first formed a corporation, purchased a domain name, or filed a fictitious-business-name statement.

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TRADE DRESS

Trade dress may protect the distinctive, nonfunctional overall appearance of a product, package, business, or commercial presentation when it identifies source. Potential trade dress may include:

• Product packaging

• Label design

• Store layout

• Restaurant décor

• Website presentation

• Product configuration

• Color combinations

• Graphic arrangements

• The overall visual appearance of a product line

 

A trade-dress claim may require proof that the claimed features are distinctive, nonfunctional, and likely to cause confusion when copied. Trade-dress protection cannot generally be used to obtain exclusive control over features that are essential to a product’s use, affect its cost or quality, or place competitors at a significant non-reputation-related disadvantage.

 

TRADEMARK COUNTERFEITING

Counterfeiting involves more than ordinary similarity. It generally concerns unauthorized use of a counterfeit version of a registered mark on or in connection with goods or services. Counterfeit disputes may involve:

• Clothing and accessories

• Cosmetics

• Electronics

• Automobile parts

• Professional services

• Online marketplaces

• Social-media stores

• Packaging and labels

• Imported products

• Unauthorized replicas

• Fake certification marks

• Fraudulent branded documents

 

Potential remedies may include:

• Emergency restraining orders

• Asset restraints

• Seizure of counterfeit goods in qualifying cases

• Injunctions

• Destruction of counterfeit products

• Actual damages

• Defendant’s profits

• Statutory damages

• Enhanced damages

• Attorney’s fees in qualifying matters

 

Prompt action may be necessary because counterfeiters can move inventory, transfer proceeds, close online accounts, and reopen under different names.​

 

TRADEMARK DILUTION

Owners of qualifying famous marks may have claims when another party’s use impairs the mark’s distinctiveness or harms its reputation, even when ordinary consumer confusion is not established. Dilution may involve:

• Blurring, which weakens the unique association between the famous mark and its owner; or

• Tarnishment, which harms the reputation of the famous mark.

 

Not every successful or well-known business owns a legally famous mark for dilution purposes. Fame generally must extend to the broader consuming public rather than only a specialized industry or local market.

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DOMAIN NAMES AND CYBERSQUATTING

Domain-name disputes may arise when someone registers, uses, or traffics in a domain name that is identical or confusingly similar to another party’s mark. Potential cybersquatting conduct may include:

• Registering a domain to demand payment from the trademark owner

• Diverting customers to a competitor

• Operating a fraudulent copy of another business’s website

• Using a domain to sell counterfeit goods

• Registering multiple versions of another company’s mark

• Redirecting traffic for commercial gain

• Impersonating a business

• Using a former employer’s or former partner’s name after separation

• Registering domains to damage a competitor

 

Available proceedings may include federal litigation and certain administrative domain-name procedures.

The appropriate forum depends on the domain, registrar, registration agreement, mark, registrant, requested relief, and evidence of bad faith.

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TRADE-SECRET MISAPPROPRIATION

Trade-secret misappropriation may occur when a person improperly acquires, uses, or discloses another party’s protected confidential information. Potential misconduct may include:

• An employee downloading confidential files before resigning

• A former employee providing information to a competitor

• A business partner using confidential information outside the permitted purpose

• A competitor inducing an employee to disclose protected information

• Unauthorized copying of source code

• Taking customer information

• Disclosing confidential product plans

• Using stolen pricing or bidding information

• Retaining confidential documents after a relationship ends

• Accessing restricted systems without permission

• Forwarding company information to a personal account

• Using information obtained through fraud or misrepresentation

• Violating a nondisclosure obligation

 

Reverse engineering and independent development may be lawful under appropriate circumstances. General knowledge, skills, and experience ordinarily do not become trade secrets merely because they were obtained during employment.

 

The central issues may include:

• What specific information is claimed as a trade secret?

• Was the information actually secret?

• Did it have independent economic value?

• What measures were used to protect it?

• How did the defendant obtain it?

• Was the information used or disclosed without authorization?

• Did the defendant independently develop the information?

• What harm resulted?

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REASONABLE MEASURES TO PROTECT TRADE SECRETS

A business cannot ordinarily leave information freely available and later claim that it was protected as a trade secret.

Reasonable protective measures may include:

• Written confidentiality agreements

• Access restrictions

• Password protection

• Encryption

• Confidentiality labels

• Need-to-know limitations

• Employee training

• Vendor and contractor restrictions

• Secure document systems

• Device-management policies

• Exit interviews

• Return-of-property procedures

• Monitoring of downloads and transfers

• Revocation of access after separation

• Policies governing personal devices and cloud storage

• Physical security

• Procedures for visitors

• Enforcement of confidentiality obligations

 

The law generally requires reasonable protection, not absolute secrecy. The required measures depend on the nature of the information, the company, its resources, and the circumstances.

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IDENTIFYING THE ALLEGED TRADE SECRETS

A plaintiff alleging trade-secret misappropriation must identify the protected information with sufficient specificity to distinguish it from general knowledge and publicly available information. In California trade-secret litigation, a plaintiff generally must identify the alleged trade secret with reasonable particularity before beginning discovery relating to the trade secret. A trade-secret identification should not rely solely on broad descriptions such as:

• All confidential information

• All customer information

• Business methods

• Marketing information

• Technical knowledge

• Company data

• Proprietary materials

 

The identification must be sufficiently clear to permit the parties and court to understand what information is actually at issue while protecting legitimate secrecy interests through appropriate confidentiality procedures.​

 

EMPLOYEE MOBILITY AND TRADE SECRETS

California generally protects employee mobility and does not permit employers to convert ordinary experience or professional skill into property belonging to the employer. A former employee may generally use:

• General knowledge

• Skills

• Experience

• Publicly available information

• Information independently developed

• Personal relationships not derived from protected information

 

However, an employee may not necessarily take or use:

• Protected source code

• Confidential pricing files

• Nonpublic customer data

• Secret formulas

• Internal strategy documents

• Proprietary technical materials

• Information obtained through unauthorized system access

• Other qualifying trade secrets

 

Trade-secret litigation should distinguish between legitimate protection of confidential information and an improper attempt to restrain lawful competition or employment.

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PATENT INFRINGEMENT

Patent infringement may occur when a person, without authority, makes, uses, offers to sell, sells, or imports a patented invention within the United States during the patent term. Liability may also arise from:

• Actively inducing another person to infringe

• Contributing specially adapted components to an infringing product or process

• Continued infringement after notice

• Unauthorized sales through distributors or online marketplaces

• Importation of infringing products

• Use of a patented process

• Incorporation of patented technology into a larger product

 

Patent litigation commonly involves:

• Construction of patent claims

• Comparison of the accused product or process to each claim limitation

• Direct infringement

• Induced infringement

• Contributory infringement

• Invalidity

• Prior art

• Inventorship

• Ownership

• Enforceability

• Willfulness

• Damages

• Reasonable royalties

• Lost profits

• Injunctive relief

 

The fact that a product appears similar to a patented product does not by itself establish infringement. The asserted patent claims must be analyzed against the accused product or process.

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INVENTORSHIP AND OWNERSHIP DISPUTES

The person who conceived an invention is not always the same person or entity that owns the patent rights. Ownership may be affected by:

• Employment agreements

• Invention-assignment provisions

• Consulting agreements

• Corporate agreements

• University policies

• Joint-development agreements

• Funding agreements

• Acquisition documents

• Written assignments

• Obligations to assign future inventionsInventorship is a legal determination based on contribution to conception of the claimed invention. Merely following instructions, funding development, supervising work, or reducing an invention to practice does not necessarily make someone an inventor.

 

Ownership and inventorship disputes should be addressed before commercialization, licensing, financing, or enforcement whenever possible.

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LICENSING AND ROYALTY DISPUTES

An intellectual-property license allows another person or business to use protected rights subject to agreed terms. Disputes may concern:

• The scope of permitted use

• Territory

• Duration

• Exclusivity

• Sublicensing

• Royalty calculations

• Sales reporting

• Audit rights

• Minimum payments

• Quality-control obligations

• Ownership of improvements

• Use after termination

• Unauthorized distribution channels

• Modification of licensed content

• Assignment of the agreement

• Confidentiality

• Indemnification

• Termination rights

• Post-termination obligations

 

A licensee that exceeds the scope of a license may face contract claims, infringement claims, or both, depending on the agreement and nature of the violation.

 

Licensing disputes often require review of:

• The complete contract

• Amendments

• Course of performance

• Royalty statements

• Sales records

• Product records

• Communications between the parties

• Audit materials

• Accounting data

• Evidence of permitted and unpermitted uses

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OWNERSHIP DISPUTES BETWEEN FOUNDERS AND BUSINESS PARTNERS

Intellectual-property disputes frequently arise after a business relationship deteriorates. Common questions include:

• Who owns the company name?

• Who owns the website and domain?

• Who owns the customer list?

• Who owns the software?

• Who owns the social-media accounts?

• Who owns photographs and advertising materials?

• Who owns inventions developed during the relationship?

• Was the intellectual property transferred to the company?

• Can a departing founder continue using the brand?

• Who controls licensing revenue?

• Were assets created before or after formation?

• Did a founder contribute intellectual property as capital?

 

Corporate records alone may not resolve every ownership issue. Contracts, assignments, employment relationships, creation history, account records, source files, and the parties’ conduct may all be relevant.

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WORK CREATED BY EMPLOYEES AND CONTRACTORS

Businesses should not assume that all work prepared for them is automatically owned by them. Ownership may depend on:

• Whether the creator was an employee

• Whether the work was created within the scope of employment

• Whether the creator was an independent contractor

• Whether the work qualifies under the statutory work-made-for-hire rules

• Whether a written assignment exists

• What the governing agreement states

• When the work was created

• What resources were used

• Whether the creator retained preexisting materials

• Whether third-party material was incorporated

 

A contract can distinguish between:

• Preexisting intellectual property

• Newly created deliverables

• Licensed components

• Open-source materials

• Company-owned work

• Contractor-owned tools

• Improvements and derivative works

 

Unclear agreements can result in significant litigation after a product becomes successful.

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FALSE ADVERTISING

Federal and California law may prohibit false or misleading commercial representations concerning goods, services, business activities, or geographic origin. False-advertising disputes may involve statements about:

• Product quality

• Safety

• Performance

• Effectiveness

• Ingredients

• Testing

• Certifications

• Manufacturing origin

• Environmental benefits

• Pricing

• Professional qualifications

• Endorsements

• Comparative performance

• Affiliation

• Approval

• Availability

• Product characteristics

• Scientific or clinical support

 

A claim may arise when a competitor makes a material false or misleading statement in commercial advertising that harms another business. The distinction between actionable factual representations and nonactionable opinion, exaggeration, or commercial puffery may be critical.

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UNFAIR COMPETITION

California’s Unfair Competition Law broadly addresses unlawful, unfair, and fraudulent business practices, as well as unfair, deceptive, untrue, or misleading advertising. Intellectual-property disputes may include unfair-competition claims involving:

• Misleading branding

• False statements about affiliation

• Passing off another company’s goods as one’s own

• Reverse passing off

• Unauthorized use of confidential information

• Misleading advertising

• Counterfeit products

• Deceptive online practices

• Misappropriation of business identity

• Conduct violating another statute

 

The remedies available under an unfair-competition claim are not necessarily the same as the remedies available for trademark, copyright, trade-secret, patent, or contract claims.

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RIGHT OF PUBLICITY AND UNAUTHORIZED COMMERCIAL USE

A person may have claims when another party knowingly uses the person’s name, voice, signature, photograph, or likeness for advertising, merchandising, or commercial sales without legally sufficient consent. Potential disputes include:

• Unauthorized use in advertisements

• Use of a photograph to promote a business

• Use of a person’s voice in commercial content

• False celebrity or professional endorsements

• Unauthorized merchandise

• Social-media advertising

• Commercial use of a person’s image after a contract ends

• Use of a minor’s identity without legally sufficient consent

• Digital replicas and synthetic media

• Use of a performer’s identity beyond the scope of a release

• Use of an employee’s image in advertising

• Commercial impersonation

 

Not every use requires consent. News, public affairs, sports reporting, political campaigns, expressive works, incidental uses, and other protected activities may receive statutory or constitutional protection. The analysis depends on the nature of the use, its commercial connection, the consent or release, and the context in which the identity appears.​

 

ONLINE INFRINGEMENT

Online infringement may involve:

• Websites

• Social-media platforms

• Online marketplaces

• Streaming services

• Mobile applications

• Search advertising

• Digital storefronts

• File-sharing services

• Cloud storage

• Artificial-intelligence systems

• Domain names

• Anonymous accounts

• Foreign sellers

• Affiliate networks

 

Potential actions may include:

• Sending preservation demands

• Identifying anonymous users

• Submitting platform complaints

• Pursuing statutory takedown procedures

• Contacting hosting providers or registrars

• Seeking emergency court relief

• Subpoenaing account information

• Filing federal or state litigation

• Seeking removal of counterfeit listings

• Tracing payment and fulfillment records

 

A platform takedown does not necessarily resolve ownership, damages, repeat infringement, or broader distribution of the material. Improper takedown requests may also create legal exposure. A request should accurately identify the protected work, the challenged material, the owner’s rights, and the basis for asserting infringement.

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ARTIFICIAL INTELLIGENCE AND INTELLECTUAL PROPERTY DISPUTES

Artificial-intelligence technology has created new disputes involving:

• Use of copyrighted content

• Training data

• AI-generated text, images, music, and video

• Synthetic voices

• Digital replicas

• Unauthorized likenesses

• Removal of copyright information

• Ownership of AI-assisted material

• Confidential information entered into AI tools

• Trade-secret disclosure

• False endorsements

• Impersonation

• Deepfakes

• Contract restrictions on AI use

 

The legal analysis may depend on the human contribution, source material, license terms, commercial use, technology involved, and existing copyright, trademark, trade-secret, privacy, publicity, contract, and unfair-competition law.

Because this area continues to develop, disputes should be evaluated under the law and platform rules in effect when the conduct occurs.

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CEASE-AND-DESIST LETTERS

A cease-and-desist letter may be used to:

• Provide notice of claimed rights

• Demand that infringement stop

• Request removal of content

• Preserve claims

• Demand an accounting

• Seek identification of suppliers or distributors

• Request return or destruction of confidential information

• Propose licensing discussions

• Demand preservation of evidence

• Explore resolution before litigation

 

A cease-and-desist letter is not a court order. The recipient is not automatically required to accept the sender’s allegations. Before sending a demand, the claimant should evaluate:

• Ownership

• Registration status

• Priority

• Scope of protection

• Potential defenses

• The accuracy of the allegations

• The desired business outcome

• Whether immediate litigation is likely

• Whether the recipient may file first in another forum

• Whether the demand could trigger an anti-SLAPP motion or other counterclaim

 

Before responding to a demand, the recipient should preserve evidence and evaluate the claim before removing material, admitting liability, contacting customers, or signing an agreement.

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EMERGENCY INJUNCTIVE RELIEF

Intellectual-property harm may require immediate court intervention. A party may seek a temporary restraining order or preliminary injunction to prevent:

• Continued disclosure of trade secrets

• Sale of counterfeit products

• Release of confidential information

• Continued use of an infringing mark

• Distribution of infringing content

• Destruction of evidence

• Transfer of disputed intellectual property

• Continued access to restricted systems

• Misuse of a domain name

• Unauthorized commercial use of a person’s identity

 

Emergency relief is not automatic. The requesting party generally must present competent evidence addressing factors such as:

• Likelihood of success

• Irreparable harm

• Balance of hardships

• Public interest

• The immediacy of the threatened conduct

• The requested order’s scope

• Notice to the opposing party

• Security or bond requirements

 

An overbroad injunction may improperly restrict lawful competition, speech, employment, or use of material outside the claimant’s rights.

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PRESERVATION OF ELECTRONIC EVIDENCE

Intellectual-property cases frequently depend on electronically stored information. Relevant evidence may include:

• Source files

• Metadata

• Version histories

• Source-code repositories

• Cloud-storage records

• Email

• Text messages

• Collaboration-platform messages

• Download logs

• USB-device history

• Access logs

• Login records

• Domain-registration records

• Website archives

• Social-media posts

• Online listings

• Sales data

• Royalty reports

• Design drafts

• Photographic files

• Account ownership information

• Device images

• Deleted files

• Artificial-intelligence prompts and outputs

• Communications with vendors and customers

 

Once litigation is reasonably anticipated, relevant evidence should be preserved. Routine deletion, device replacement, account termination, automatic message destruction, and overwriting of logs may result in the loss of critical information.

Preservation should be targeted, lawful, and proportionate. Parties should not access accounts, devices, or systems without authorization.

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WHAT EVIDENCE SHOULD BE PRESERVED?

Depending on the dispute, relevant materials may include:

• Registrations and applications

• Certificates of registration

• Assignments

• Licenses

• Nondisclosure agreements

• Employment agreements

• Independent-contractor agreements

• Invention-assignment agreements

• Corporate records

• Partnership agreements

• Drafts and source files

• Evidence showing creation dates

• Evidence showing first commercial use

• Sales records

• Marketing materials

• Website captures

• Product packaging

• Advertisements

• Customer communications

• Evidence of confusion

• Complaints from customers

• Royalty statements

• Accounting records

• Product samples

• Confidentiality policies

• Access-control records

• Exit documents

• Communications concerning the disputed use

• Screenshots showing dates and internet addresses

• Original photographs, videos, and recordings

 

Screenshots should capture the full page, account name, date, internet address, surrounding context, and challenged material when possible. Physical products should be preserved in their original packaging. Digital files should not be edited merely to highlight the disputed material.

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DAMAGES AND OTHER REMEDIES

The remedies available depend on the rights asserted, the defendant’s conduct, registration status, causation, evidence, and applicable law. Potential relief may include:

• Temporary restraining orders

• Preliminary injunctions

• Permanent injunctions

• Actual damages

• Lost profits

• Reasonable royalties

• Defendant’s profits

• Unjust enrichment

• Statutory damages

• Enhanced damages

• Exemplary damages

• Punitive damages under applicable state law

• Corrective advertising

• Product recall

• Impoundment

• Seizure in qualifying cases

• Destruction of infringing products

• Return or deletion of confidential information

• Transfer or cancellation of a domain name

• An accounting

• Declaratory relief

• Contract damages

• Restitution

• Prejudgment interest

• Attorney’s fees and costs when authorized

 

Not every successful claim permits every remedy. A plaintiff must generally connect the requested monetary recovery to the infringement, misappropriation, breach, or other wrongful conduct. A defendant may challenge causation, apportionment, lost-profit calculations, royalty assumptions, and whether claimed revenue is attributable to the protected material.​

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DEFENDING AN INTELLECTUAL-PROPERTY CLAIM

A demand letter or lawsuit does not establish infringement. Potential defenses may include:

• The plaintiff does not own the asserted rights

• The rights were assigned or licensed

• The alleged intellectual property is invalid

• The asserted material is not protectable

• The marks are not confusingly similar

• There is no likelihood of confusion

• The defendant used the material first

• The work was independently created

• The use is fair use

• The use is nominative or descriptive

• The challenged feature is functional

• The information is not secret

• Reasonable secrecy measures were not used

• The information was independently developed

• The defendant lawfully reverse engineered the product

• The patent claims do not cover the accused product

• The patent is invalid or unenforceable

• The claim is barred by the applicable limitation period

• The plaintiff consented, acquiesced, or granted an implied license

• Damages are speculative or unrelated to the challenged conduct

• The claim improperly restrains lawful competition or speech

• The dispute is governed by a contract, arbitration clause, or forum provision

 

A defendant may also have counterclaims involving:

• Declaratory relief

• Breach of contract

• False advertising

• Unfair competition

• Interference with business relationships

• Misrepresentation

• Abuse of legal procedures

• Wrongful takedown demands

• Invalidity or cancellation

• Ownership

• Unpaid royalties

 

Immediate preservation of evidence is important even when the claim appears meritless.

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INTELLECTUAL PROPERTY AND ANTI-SLAPP

Some intellectual-property and related business claims may implicate California’s anti-SLAPP statute when they arise from protected speech or petitioning activity. Potentially affected claims may involve:

• Advertising

• Online publications

• Reviews

• Public statements

• Demand letters

• Government petitions

• Litigation communications

• Artistic or expressive works

• Public controversies

• Claims concerning the use of a person’s identity in expressive material

 

An anti-SLAPP motion can result in early dismissal, a stay of discovery, and an award of attorney’s fees to a prevailing defendant. Not every intellectual-property dispute involves protected activity. The allegations, injury-producing conduct, forum, and requested relief must be evaluated carefully.

 

HOW LONG DOES A PARTY HAVE TO FILE?

Intellectual-property disputes are governed by different limitation periods. Examples include:

• Federal copyright claims generally must be filed within three years after the claim accrues

• Federal trade-secret claims generally must be filed within three years after discovery, or when the misappropriation reasonably should have been discovered

• California trade-secret claims generally have a three-year discovery-based limitation period

• Patent damages are subject to specialized statutory limits

• Trademark and unfair-competition claims may be affected by analogous limitation periods and equitable doctrines

• Contract claims depend on whether the agreement is written or oral and which law governs

• Fraud, interference, publicity, and related state-law claims have separate deadlines

 

Continuing use does not necessarily restart every deadline or revive all earlier damages. Delay can also result in equitable defenses, lost evidence, expanded customer confusion, loss of secrecy, or difficulty obtaining emergency relief.

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FREQUENTLY ASKED QUESTIONS

Do I need a registration before I own intellectual property?

It depends on the type of intellectual property. Copyright may arise upon creation and fixation of a qualifying work, although registration is important and may be required before filing suit on many United States works. Trademark rights may arise through lawful commercial use, even without federal registration. Trade-secret protection depends on secrecy, economic value, and reasonable protective measures rather than registration. Patent rights generally require issuance of a patent.

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Is an idea protected by copyright?

Copyright generally does not protect an idea by itself. It may protect the original expression used to communicate the idea. Other rights—such as contract or trade-secret rights—may protect an idea when it was disclosed under circumstances creating confidentiality obligations.

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Does paying someone to create a work mean I own it?

Not necessarily. Payment alone does not automatically transfer every intellectual-property right. The creator’s employment status, written agreements, work-made-for-hire rules, assignments, and license terms must be reviewed.

 

Can I use material found online?

Material appearing online is not automatically free to use. A person should determine who owns it, whether a license applies, whether the material is in the public domain, and whether the planned use is otherwise legally permitted.

 

Does giving credit prevent copyright infringement?

No. Attribution does not replace permission when permission is legally required.

 

Can two businesses have similar names?

Potentially. The analysis may depend on the similarity of the names, goods or services, customers, geographic markets, advertising channels, priority, and likelihood of confusion.

 

Do I need a federally registered trademark to sue?

Not always. Unregistered marks may receive protection under federal or state law, although registration can provide significant legal advantages.

 

Can a former employee work for a competitor?

Generally, lawful employment with a competitor does not by itself establish trade-secret misappropriation. A former employee may use general skills and experience but may not misappropriate qualifying trade secrets or violate enforceable confidentiality obligations.

 

Is a customer list always a trade secret?

No. The list’s contents, availability, development, economic value, and protective measures must be evaluated. Information readily available through public sources may not qualify merely because it was compiled by a business.

 

Can I copy a competitor’s product if it is not patented?

The absence of a patent does not necessarily eliminate all legal risk. Copyright, trade dress, trademark, trade-secret, contract, design-patent, false-advertising, or other rights may still apply.

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Is a cease-and-desist letter legally binding?

A demand letter is not itself a court order. It should nevertheless be reviewed promptly because it may provide notice, affect later claims, demand evidence preservation, or precede a lawsuit.

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Should I remove disputed content immediately after receiving a demand?

The appropriate response depends on the claim, business risk, platform rules, evidence, and potential defenses. Evidence should be preserved before content, accounts, source files, or listings are altered or removed.

 

Can an intellectual-property dispute be resolved without trial?

Yes. Disputes may be resolved through negotiated agreements, licenses, coexistence arrangements, product modifications, rebranding, royalty adjustments, mediation, arbitration, consent judgments, or other business-focused resolutions.

 

Can intellectual-property cases be filed in state court?

Some disputes may proceed in state court, including many contract, trade-secret, ownership, publicity, and unfair-competition matters. Federal courts generally have exclusive jurisdiction over patent and copyright claims arising under federal law. Trademark cases may also proceed in federal court when federal jurisdiction exists.

 

Can a business recover lost profits?

Potentially. The business must generally establish causation and provide a reasonable evidentiary basis for the amount claimed. Damages may be disputed when other market forces, products, expenses, or business conditions contributed to the alleged loss.

 

Can the court stop the conduct before trial?

Potentially. Temporary restraining orders and preliminary injunctions may be available when the requesting party satisfies the applicable legal and evidentiary requirements.

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HOW THE WESTMORELAND LAW FIRM CAN HELP

Intellectual-property litigation requires more than identifying similarities between products, marks, or creative works. The ownership history, governing agreements, registration status, protectable elements, commercial context, defenses, damages, and desired business outcome must be examined.

 

The Westmoreland Law Firm can:

• Evaluate ownership and standing

• Analyze assignments, licenses, and confidentiality agreements

• Investigate the creation and use of disputed intellectual property

• Evaluate copyright, trademark, trade-secret, patent, publicity, and related claims

• Preserve electronic and physical evidence

• Investigate online infringement

• Obtain website, domain, platform, and account records

• Analyze priority and commercial use

• Evaluate consumer confusion

• Identify and define alleged trade secrets

• Analyze reasonable secrecy measures

• Investigate employee and contractor conduct

• Prepare or respond to cease-and-desist demands

• Pursue or oppose emergency injunctive relief

• Submit or challenge online takedown requests

• Investigate counterfeit distribution networks

• Analyze royalty and licensing records

• Pursue accountings, damages, profits, royalties, and other available relief

• Defend against unsupported or overbroad infringement claims

• Evaluate counterclaims and declaratory-relief options

• Coordinate forensic review of devices and electronic records

• Retain technical, survey, accounting, valuation, damages, and industry experts when appropriate

• Litigate claims in state or federal court

• Prepare disputes for negotiation, mediation, arbitration, or trial

 

Our approach considers both the legal claims and the commercial consequences. Effective intellectual-property litigation may require stopping ongoing harm, preserving customer relationships, protecting confidential information, maintaining business operations, and developing a resolution that protects the client’s long-term interests.

 

 

This page provides general information concerning federal and California law and is not legal advice. Reading this page does not create an attorney-client relationship. Intellectual-property ownership, registration requirements, defenses, limitation periods, jurisdiction, available remedies, and litigation strategy depend on the specific facts of each matter.