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The only way to truly protect yourself is to bring a lawsuit for theft or infringement. Because this kind of litigation is so complicated, you will need to hire an experienced intellectual property lawyer. To find an intellectual property attorney, you should visit your state's bar association, which should run a referral program. A successful suit for theft or infringement will differ depending on the intellectual property and the law that you are suing under. However, you will generally need to prove the following in order to establish theft or infringement: In a copyright infringement suit, you must prove that the defendant had access to your work and that the defendant's work is "substantially similar" to yours. Proving access is generally easy if the work is widely distributed or mass marketed, for example through the web.Substantial similarity can be more difficult to prove. The similarity must be such that it can only be explained by copying, as opposed to independent creation, coincidence, or the existence of a prior common source. In a trademark suit, you must prove that the unauthorized use of the trademark will likely cause confusion, deception, or mistake as to the source of the goods. You will need to show that you own a valid mark, have priority over the defendant's use, and that the defendant's use of the mark is "likely to cause confusion" in the consumer's mind. Likelihood of confusion is a fact-specific inquiry. It looks at how similar the marks are, whether the parties' goods and services are related, and whether there is any evidence of actual confusion, among other factors. In a trade secrets case, you must prove unlawful appropriation. To simplify greatly, this means you must prove that the defendant acquired the trade secret by improper means or that the defendant published a trade secret when he know the person who gave him the information obtained it through improper means. You have copyright and trademark rights regardless of whether or not you have registered them. Copyright rights spring up the moment you affix the work in a tangible medium. Also, you can establish trademark rights through use in commerce. However, you will have stronger rights if you register your intellectual property. Also, registration may be a prerequisite to bringing a lawsuit. For example, to sue for copyright infringement, you must first register the copyright. Your attorney can help you register your intellectual property with the appropriate agency. For more information, you can see wikiHow's How to File a Trademark and How to Apply for a Copyright. Your attorney will initiate a lawsuit by filing a complaint in either federal or state court. The complaint will name the defendant, allege facts surrounding the theft or infringement, and request relief. A sample complaint for trademark infringement can be found online at the Wall Street Journal website. After you file a lawsuit, you can engage in "discovery." Discovery is a process where you can request information from the other party. As part of discovery, you can request any document related to the dispute which is in the defendant's possession or control. This is called a "Request for Production." You can also ask the other party to answer questions, which you propound in writing or orally. Written questions will be served as Interrogatories or Requests for Admission. Oral questions will be asked in a deposition. You should strategize with your lawyer about what kinds of documents will help you prove theft or infringement. For example, you might ask for all drafts that the defendant used in the creation of his final product. This material might make reference to your intellectual property. If so, that document can help prove access to your work. The defendant is also able to request discovery from you. You must be sure to comply with any "litigation hold" and preserve all documents requested. If you negligently (or deliberately) destroy evidence, the court could sanction you. To help you prove theft or infringement, you should depose the defendant. During a deposition, your attorney will ask the defendant questions under oath. A court reporter will record the answers. The deposition is a good time to gather evidence of theft. Your attorney can ask very pointed questions about how long the defendant has been using the questionable material, where he or she has distributed it, and whether the defendant ever had access to your work. You can begin to build a case against the defendant in the deposition. When the defendant testifies in court, you may be able to impeach him or her with statements made in a deposition. In a typical lawsuit, the defendant frequently brings a motion for summary judgment after discovery has ended. In a motion for summary judgment, the defendant will argue that there are no genuine disputes of material fact and that judgment is warranted as a matter of law. Your lawyer will probably defend against the motion by arguing that there is a genuine dispute as to a material fact, e.g., whether the defendant had access to your intellectual property. The defendant may reach out to you at any time for settlement. The likelihood of settlement will increase if the defendant files a motion for summary judgment and loses. You should seriously consider all settlement offers, since settlement would help reduce the costs of your litigation. Plaintiffs are often pleased with the results of settlement negotiations. The other party is frequently more flexible than you may imagine. Before settlement negotiations, you should talk with your attorney about how much your lawsuit is worth. Be prepared for the defendant to offer to settle the case for a low amount. You do not have to accept this initial offer but can counter it. Your attorney has an ethical duty to notify you of any settlement offer. Ask him or her to keep you in the loop if any offer to settle is extended. Ultimately, the decision whether to settle is yours.
Hire a lawyer. Know what you have to prove. Register the intellectual property, if necessary. File a complaint. Request documents. Request a deposition of the defendant. Defend against a motion for summary judgment. Participate in settlement negotiations.