Protecting Your Intellectual Property Rights

The freedom of the Internet is a major factor in its success as a driver of innovation, creativity and growth.

A U.S. Senate committee has unanimously approved a controversial bill that would allow the U.S. Department of Justice to seek court orders requiring search engines and Internet service providers to stop sending traffic to websites accused of infringing copyright.

Which brings us to a timely interview with Abraham J Safdie of Safdie PLLC.

Safdie PLLC is a New York-based legal firm that represents technology start-ups and mid-sized businesses. The firm specializes in angel and venture capital financings, founders’ issues and exit strategies.

1. How does a business (small or large) protect its original content/intellectual property rights and graphics on the web?  

Commercializing your intellectual property comes with the risk of unlawful appropriation, and there is no watertight method to prevent such infringement from occurring.  The first step in defending your intellectual property from infringement is finding out about the infringing activities.

For online activities, businesses may set up a regular search on Google Alerts or contract with private companies, which offer infringement-monitoring services like Cyberalert or National Trademark Investigations.

The type of intellectual property will, to some degree, dictate what options are available to you.  Monitoring for unlawful uses of graphics or music, for instance, pose a much greater challenge than searching for text.

Once you’ve identified an unlawful use of your intellectual property, the next step is to remove the content.  Generally, US law grants ISPs, or Internet Service Providers, a safe harbor from liability for its users’ infringing activities.  Further, ISPs are generally under no obligation to screen for infringement the files that are posted by its users.  However, ISPs are required to promptly take down unlawful content upon proper notification.

Most large ISPs will have their own infringement notice forms.  If the ISP does not have a notification form, and to the extent you have not already roped in an attorney, I would recommend doing so at that point.

Depending on the context, it may make sense to retain an attorney to enforce your intellectual property rights in court.  Considering the costs, in terms of time and money, the decision to litigate should not be taken lightly.

2. What are some of the legal things business owners can do, to protect their assets?

Intellectual property is often the single most valuable asset of a business.  In these businesses, there is simply no excuse for not registering the intellectual property with the federal government.  While it is true that you may be entitled to certain protections automatically upon creation or use of your intellectual property, timely registering your marks will entitle you to significant benefits in the event of an infringement lawsuit.

The creation of intellectual property is typically the result of a group effort.  As such, ownership of intellectual property may also be subject to challenge from consultants and employees who helped cultivate the finished product.  Every individual involved in the creation of intellectual property should be required to sign, prior to their work on the project, an intellectual property assignment agreement.  A properly drafted agreement would preclude subsequent claims from these individuals that they personally own a piece of the intellectual property.

3. What are some of the common requests/questions you receive as it relates to this matter?

One issue that has recently arisen is with respect to individuals registering websites containing the trademarks of my clients.

Many jurisdictions have non-judicial forums to expeditiously and cheaply resolve these disputes, but, considering how effortless and inexpensive it is to register your own domain name, these forums are still relatively time-consuming and costly.  The lesson learned from this is to register your domain names in those jurisdictions you anticipate a substantial market, as well as those other top level domain names that become trendy from time to time, such Columbia’s “.co” domain name ending.

You can reach Abraham J. Safdie via email at asafdie@safdiepllc.com.

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