As you conduct business, you must pay attention to the trade secrets that set your business products and services apart from those of competitors in the marketplace. You may be on either side of a potential controversy over intellectual property such as the following:

  • You may be creating and using slogans and logos to market your business’s products. Your slogan or logo may have elements that are similar to those used by others. Are they distinguishable? Are you infringing on someone else’s intellectual property or exercising your right to fair uses of images and words? Are you putting yourself at risk of litigation?
  • You are the owner and developer of intellectual property such as trademarks and trade secrets. You have reason to believe that another person or company is infringing on your trademarks in ways that cannot be legally justified.

When infringers claim their use was fair

Defendants in intellectual property disputes sometimes claim that they were exercising their rights to fair use of a trademark or service mark. They may cite Section 107 of the Copyright Act that spells out sample contexts of fair use of others’ intellectual property, such as criticism, comment, news reporting, teaching, scholarship and research.

To understand what fair use is and determine whether a use has been fair or unfair, a place to start is to review considerations from the Copyright Act that may shed light on what is or is not fair use. We might phrase these in question form:

  • What is the purpose and character of the use? Commercial or educational? Noncommercial use may be fair. (The courts will consider other factors, too).
  • What is the nature of the copyrighted work? (Is it original and creative or factual, for example?)
  • How does the amount and substantiality of the portion used compare to the copyrighted work as a whole? (A small clip of a film used as a basis of criticism may not be substantial enough to be problematic, for example, as opposed to copying the entire film.).
  • How might the use in question affect the potential market or value of the copyrighted work? (A court may determine that a use was not fair if the unlicensed use of intellectual property hurt the demand for the original work in the market.)

To protect your intellectual property or defend yourself from accusations of infringement, seek customized advice from an intellectual property professional. 

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