News outlets have been abuzz this week with the story of Oregon-based small-business owner Melissa Lay who recently discovered Target selling a top nearly identical to one of the many designs she'd been selling through her site, SandiLake.
Lay’s story is just one of millions, as countless small-business owners have had their ideas, designs and products stolen and copied. What legal recourse do these small-business owners have at their disposal? If someone has stolen your design or product, here are three ways to fight back.
1. Copyright Infringement Lawsuit
While copyright law doesn’t protect “ideas” in and of themselves, copyright law does protect the “fixed expressions of ideas” (e.g. books, drawings, photos, scripts, etc.).
Once your idea is expressed in a tangible form, copyright immediately and automatically invests. So, although you aren't legally required to register your work with the Copyright Office to secure a copyright, you are legally required to register your work before filing a copyright lawsuit.
Registration is a precondition for bringing an infringement lawsuit. Once your work or design has been registered with the Copyright Office, consider filing an infringement suit against your infringer. If successful, you can recover money damages in the amount of the monetary damages to your business and brand as well as your infringer’s profits. You may also recover statutory damages (which range from $500 to $20,000 per act of infringement), court costs and attorney’s fees.
2. Temporary Restraining Order (TRO)
For some small-business owners, filing a lawsuit is cost prohibitive. So if you are looking for a less costly alternative, consider filing a motion for a temporary restraining order or preliminary injunction.
A temporary restraining order and preliminary injunction are legal vehicles that can be used to halt the production, distribution or sale of the infringing product. To obtain a temporary restraining order, your attorney would simply have to file a motion proving: 1. Your claim has a substantial likelihood of success; 2. You or your company will suffer irreparable harm if the injunction is denied; 3. The threatened injury outweighs the harm that the injunction may cause the opposing party; and 4. The injunction, if issued, will not adversely affect the public interest.
A restraining order or injunction will give you and the infringing party an opportunity to find a resolution outside the confines of court, while preventing the infringer from continuing to make financial gains off your idea.
3. Law School Entrepreneurship Clinics
Many small-business owners simply cannot afford the costs associated with lawsuits and litigation. For truly cash-strapped entrepreneurs looking for remedies and recourse for infringement claims, consider applying for an Intellectual Property Clinic.
Several law schools throughout the country provide free legal counsel and support for entrepreneurs seeking help for acts of intellectual property infringement. Law school faculty work in conjunction with law students to assist entrepreneurs with such matters as drafting a professional “Cease and Desist Letter” to finding alternative solutions. A few of the most well-known clinics include (note that you must reside in the same state as the clinic):
- University of Washington School of Law Entrepreneurship Clinic ( firstname.lastname@example.org)
- University of Pennsylvania Law School Entrepreneurship Legal Clinic ( email@example.com
- University of Notre Dame Law School Intellectual Property and Entrepreneurship Clinic ( firstname.lastname@example.org)
- University of southern California Intellectual Property and Technology Law Clinic ( email@example.com)
- University of Connecticut School of Law Intellectual Property and Entrepreneurship Law Clinic ( firstname.lastname@example.org)