Insights

IP Litigation

IP litigation insights on copyright, trademark, domain name, and trade secret disputes.

Anatomy of a Copyright Infringement Case: Defenses to Allegations of Copyright Infringement

Below is the third excerpt from a presentation I gave at the State Bar of Texas' 16th Annual Entertainment Law Institute entitled "Legal & Business Aspects of Music, Film and Digital Entertainment" in October 2006. Again, this was written for a court in the Fifth Circuit Court of Appeals, and other circuits treat some of these defenses differently.

Anatomy of a Copyright Infringement Case: Elements of a Copyright Infringement Claim

I thought I'd post some excerpts from a paper that I co-wrote for a presentation I gave with a friend of mine, Buck McKinney, at the State Bar of Texas' 16th Annual Entertainment Law Institute entitled "Legal & Business Aspects of Music, Film and Digital Entertainment" in October 2006. The first excerpt is entitled "Elements of a Copyright Infringement Claim" and is one of my contributions to the paper.

Anatomy of a Copyright Infringement Case: Theories of Secondary Liability

Below is the second excerpt from a presentation I gave at the State Bar of Texas' 16th Annual Entertainment Law Institute entitled "Legal & Business Aspects of Music, Film and Digital Entertainment" in October 2006 on the topic of copyright infringement. This was written for a court in the Fifth Circuit Court of Appeals, and other circuits may treat some of these issues differently.

Copyright Infringement Litigation: What the Plaintiff Must Prove and What's at Stake

Copyright infringement is a federal claim. It's filed in federal district court under 28 U.S.C. § 1338, which grants federal courts exclusive jurisdiction over cases "arising under" the Copyright Act. A plaintiff asserting copyright infringement must prove two elements: ownership of a valid copyright and copying by the defendant of protectable expression from the copyrighted work.

Damages and Remedies in IP Litigation: What You Can Recover When Someone Infringes Your Rights

Five separate damages frameworks govern IP litigation. Copyright, trademark, trade dress, trade secret, and cybersquatting claims each carry their own statutory remedies, their own damage measures, their own prerequisites, and their own enhancement mechanisms.

Trade Dress Protection: When the Look of a Product or Business Is Protectable Intellectual Property

Trade dress is the overall commercial image of a product or business that identifies its source to consumers. Where a trademark protects a logo, a word mark, or a slogan, trade dress protects the total visual impression created by the combination of design elements that, taken together, tell a consumer where the product comes from.

Trade Secret Protection Starts Before the Lawsuit

Texas law protects trade secrets, but only when the owner protects them first. Courts decide many misappropriation cases on that requirement alone. Companies that ignore it find out in litigation that a court will refuse to protect information the company itself treated as casual, no matter how valuable that information was to the business.

Trademark Infringement and the Likelihood of Confusion Test: How Courts Decide Whether One Mark Infringes Another

Trademark infringement occurs when someone uses a mark in commerce that's likely to cause confusion among consumers about the source, sponsorship, or affiliation of goods or services. Under the Lanham Act, a plaintiff asserting trademark infringement of a registered mark (15 U.S.C. § 1114) or an unregistered mark (15 U.S.C. § 1125(a)) must prove that it owns a valid, protectable mark and that the defendant's use of a similar mark in connection with goods or services creates a "likelihood of confusion."

Unfair Competition Under the Lanham Act and Texas Common Law: When the Claim Goes Beyond Trademark Infringement

Trademark infringement protects registered marks. But competitive misconduct doesn't always involve a registered trademark. A competitor may copy your unregistered brand identity, misrepresent its own products in advertising, sell repackaged versions of your goods under its own name, or make false claims about your products to divert your customers.