I received a letter from your firm
I received a letter from your firm
I received a letter from your firm
If you've received a letter from our firm claiming that you have engaged in copyright and/or trademark infringement, please contact our office, or have your attorney do so on your behalf, at 818-888-7540 to speak with the attorney who signed your letter. Be prepared to provide the file number on the first page of your letter. You will also need to produce the document disclosures identified in the letter.
I was just served with a lawsuit
I received a letter from your firm
I received a letter from your firm
If you were recently served with a lawsuit initiated by our law firm, you will have a certain timeframe within which to file a document with the court responding to the lawsuit. This timeframe varies depending on the manner in which you were served. We highly recommend consulting with an attorney in order to prepare a timely response.
Frequently Asked Questions
What is a trademark?
A trademark is a word, symbol, or phrase used to identity a particular manufacturer/seller/company and distinguish its products from competitors. Trademark protection extends once a mark has been used in commerce, so a trademark does not need to be registered to be protected. Most famous trademarks, however, are registered with the USPTO (www.uspto.gov) in order to put others on notice of the trademark and also to gain additional protections under the law. No one else is allowed to use the trademark in commerce in connection with similar goods without permission from the trademark owner.
What is trademark infringement?
Trademark infringement is the use in commerce of someone else's trademark without their permission. If you resell a legitimate, lawfully acquired product that was manufactured by the trademark owner, you are not committing trademark infringement. However, if you use a trademark to offer for sale or sell an item that was not manufactured or approved by the trademark owner, this is trademark infringement.
What is a counterfeit?
A counterfeit is use of an identical or substantially indistinguishable imitation of a registered trademark in the same class of goods or services as the registered trademark owner.
What is a copyright?
A copyright is a form of artistic expression fixed in a tangible media. Novels, sound recordings, movies, paintings, and software are a few examples of copyrightable works. Copyright protection attaches at the moment the artistic work is created; the work does not need to be registered to be protected, although many famous works are registered with the U.S. Copyright Office (www.copyright.gov) in order to gain additional protections under the law. No one else is allowed to reproduce, distribute, publicly display, publicly perform, or create derivative works of any copyrighted work without the copyright owner's permission.
What is copyright infringement?
Copyright infringement is the unauthorized reproduction, distribution, public display, public performance, or creation of a derivative work of someone else's copyright without their permission.
What is a derivative work?
A derivative work is a new work that is based on or derived from a preexisting work. Musical arrangements, translations, and sequels are examples of a few kinds of derivative works. Crafts that take a copyrighted work and turn it into something else amy also be derivative works.
What if I didn't know that the product was a counterfeit?
Knowledge or intent are not required to be liable for copyright or trademark infringement. Copyright and trademark infringement are what is known as strict liability offenses - if you did the actions, then you're liable.
Doesn't my sale fall under the First Sale Doctrine?
The First Sale Doctrine allows owners of a specific, lawfully acquired copy of an item to do what they want with it. The First Sale Doctrine, however, only applies to legitimate products that were lawfully sold in the first place. Trademarked or copyrighted products that were not manufactured or approved by the rights owner were not lawfully sold because the manufacturer did not have permission to use the trademark or copyright. Similarly, if you steal something, you haven't lawfully acquired the copy and therefore the First Sale Doctrine does not apply. Additionally, certain products are licensed rather than sold (e.g. software). When the rights owner originally distributes the product pursuant to a license, it does not matter if any subsequent sellers claim to "sell" you the product; you can only acquire a license. Licenses are not subject to the First Sale Doctrine.
Can't I argue fair use?
First, you need to determine whether it is a trademark or a copyright that is being infringed because the fair use doctrine applies differently.
- in the context of trademarks, fair use means that the trademark MUST be either (a) contained within an article referring to the trademark for criticism or commentary purposes; (b) referring to a lawfully acquired product that was manufactured or approved by the trademark owner; or (c) referring to a trademarked product's compatibility with another product. Fair use does NOT extend to applying a trademark to any product or packaging that was not authorized by the trademark owner. Fair use does NOT extend to using a trademark in the name of a product, e.g. a BMW emblem or Graco O-ring, even if you note elsewhere that the product was not actually manufactured or approved by the trademark owner.
- In the context of copyrights, fair use means that the copyright can only be used in a limited manner and only to the extent necessary for either (a) criticism or commentary; (b) parody; (c) news reporting; (d) research or scholarship; or (e) search engines. Using the entirety of a copyrighted work is is typically NOT found to be fair use.
I used a disclaimer noting that the product wasn't manufactured by the trademark owner ...
...so I didn't actually commit trademark infringement, right?
Sorry, but no. A disclaimer does not defeat infringement. In fact, it simply shows that you knew the trademark was owned by someone else, and you still used it.
What are the damages for trademark infringement?
A trademark owner can seek the infringer’s profits, any damages sustained by the trademark owner, and/or costs of suit. If the trademark infringement involved a counterfeit, the trademark owner may be awarded up to three times the infringer’s profits, three times the trademark owner’s damages, or statutory damages ranging of up to $200,000 per counterfeit mark per type of goods at issue. If the use of the counterfeit mark was willful, a court can award damages up to $2 million per counterfeit mark per type of goods at issue. Additionally, if the court finds the matter to be an “exceptional case,” it may order the losing side to pay the prevailing side’s attorneys’ fees.
What are the damages for copyright infringement?
A copyright owner can seek its actual damages plus any additional profits of the infringer or statutory damages ranging from $750 to $30,000 per copyrighted work infringed for non-willful infringement up to $150,000 per copyrighted work infringed for willful infringement. Additionally, the court has discretion to award attorneys’ fees and costs to the prevailing party.