First of all, from the continental or European law perspective, there is a distinction between intellectual property rights and industrial property rights.
In this regard, intellectual property covers copyright on literary, artistic, and scientific works, protecting the expression of ideas. Meanwhile, industrial property focuses on the protection of trademarks, inventions (patents), industrial designs, and utility models, granting their owners exclusivity in the commercial use of these creations. From this point forward, we will refer to both as “intellectual property.”
That said, it is essential to properly identify our intangible assets in order to determine the best way to protect our intellectual property rights.
Once protected through the appropriate channels, ongoing monitoring and surveillance must be carried out to prevent third-party infringements of intellectual property rights.
The protection of intellectual property is essential to ensure exclusive use by its owners, aiming to safeguard the moral and economic rights of creators and, in doing so, foster innovation, creativity, and fair competition in the market.
When does an intellectual property infringement occur?
An infringement of intellectual property rights occurs when protected works are used, reproduced, distributed, or publicly communicated without the copyright holder’s authorization or, as the case may be, when rights such as patents, trademarks, industrial designs, or utility models are used without proper consent or authorization.
Consequently, this includes the illegal copying or plagiarism of books, music, software, or source code, as well as the misuse of trademarks, domain names, designs, patents, utility models, and more.
If you suspect a possible infringement of intellectual property rights, it is advisable to assess the breach in order to choose the correct approach or strategy to protect your rights.
What actions should be taken in case of intellectual property rights infringement?
Below are some actions to be taken in case of intellectual property rights infringement:
- Gather evidence and proof of the infringement.
- If you hold a registration title, analyze the protection granted by that title.
- Before taking any action, it is advisable to contact an intellectual property specialist to determine the most effective strategy for stopping the infringing acts and seeking compensation. In any case, keep in mind that an intellectual property infringement may constitute an act of unfair competition, as well as a civil or even criminal offense. Therefore, we recommend seeking specialized legal advice to choose the best course of action.
- Request the infringer to cease the infringing activity or, if applicable, to provide compensation or monetary damages for the unauthorized use. This can be done by sending a cease-and-desist letter.
- In some cases, an intellectual property infringement can be resolved out of court through negotiations with the infringing party.
- If the infringement persists, it is advisable to evaluate the possibility of resolving the matter through alternative dispute resolution methods, such as arbitration or mediation, or by initiating legal proceedings.
This may include filing civil lawsuits or, in more serious cases, the infringement may constitute a criminal offense, which could result in fines and even imprisonment. For this reason, it is crucial to have legal counsel to choose the most appropriate route to defend your rights.
It is evident that intellectual property infringements have a severely negative impact not only on the rights holders but also on innovation, cultural, scientific, and technological development, and the economy as a whole.
In any case, companies and individuals should advocate for prevention, as well as establish appropriate protection measures and strategies to safeguard their intangible assets. Protecting intellectual property is crucial to encourage innovation, creativity, and promote a fair and competitive environment.
Article written by:
Lawyer specializing in intellectual and industrial property and new technologies
estefania.asensio@metricson.com
About Metricson
With offices in Barcelona, Madrid and Valencia and a significant international presence, Metricson is a pioneering firm in legal services for innovative and tech companies, specializing in the protection, strategy design, and both judicial and extrajudicial defense of intellectual and industrial property rights. Since its founding in 2009, it has advised more than 1,400 clients in 15 different countries, including startups, investors, large corporations, universities, institutions, and governments.
If you would like to contact us, don’t hesitate to write to contacto@metricson.com. We look forward to hearing from you!