Intellectual Property Law

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I created a distinct looking products and over the last 6…

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I created a distinct looking...
I created a distinct looking products and over the last 6 years established in the market place. Most distinct is the sublimated top cover and stitching appearance which is known in action sports worldwide. Recently a company has made a knockoff which looks exactly like my product and anyone would think it is the same, except the logo is different. I found out because they posted a video of their new product on instagram and people tagged our company.
I did not file a design patent on the appearance when I first put out the product, a rookie mistake. Still their product although bearing their own logo will confuse consumers as the overall appearance is nearly identical. Is there anything I can do. They also copied our marketing videos exactly as well ass product performance claims.
Submitted: 6 months ago.Category: Intellectual Property Law
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Answered in 4 hours by:
12/6/2017
IP Lawyer: KLAW, Lawyer replied 6 months ago
KLAW
KLAW, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 2,290
Experience: I have over 20 years of experience in commercial real estate law, finance, consumer credit, landlord tenant, and business law.
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A little background.
You as the creator of the design owns copyrights in the original work that you have created from the moment the work is fixed in a tangible medium, and sold.However, as you know if you create an original work, design, that you want to protect you should consider filing an application for copyright registration. The advantages in doing so are that you have a presumption of validity in your copyright and you may be entitled to attorneys fees among your other remedies, i.e., damages, injunction, etc.That said, to prevail in a copyright infringement lawsuit, you: (1) must own a valid copyright, (2) that someone else actually copied the work and (3) the level of copying amounts to misappropriation (substantial similarity).Direct evidence of actual copying rarely exists, and is hard to prove. So, plaintiffs must typically rely on indirect proof of copying. Indirect proof can be shown if the defendant had access to the plaintiff's work and that the degree of similarity between the two works is so striking or substantial that the similarity could only have been caused by copying, and not, for example, through coincidence, independent creation, or a prior common source.Now, without registering the copyright, you can still obtain copyright protection albeit without the added benefit of being able to sue another for direct infringement. Such copyright protection is awarded once an expression is fixed in a tangible form such as a design printed on a product and sold.Keep in mind that copyright protection does not prevent another from producing a similar or even same design on his own and independent of the other. In other words, if the individual created a design that has "almost the same design and text" without directly copying the other, than there is no infringement.Regarding patents, designs and most artistic expression of ideas are not patentable subject matter. In your case, more facts must be uncovered to better and more fully address you concerns.You can proceed with an action But in order to succeed you must prove your actual and real measure of damages. Any analysis considers if it would it even be worth an action without substantial damages.You could first try and write a letter to the company or individual disseminating and using your work without approval.But, you should consult an experienced local intellectual property attorney to fully explore your facts scenario in order to make an informed determination regarding your rights. Finally, you should file copyright applications early and often. They are inexpensive and can give you many advantages if you have to go after an infringe.I hope this clarifies. Please don’t forget to rate the question for credit and tracking so that I will receive credit and payment for assisting you with your question.
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Customer reply replied 6 months ago
They got the product from the contract factory who makes the product for me. The factory is in breach of contract.
IP Lawyer: KLAW, Lawyer replied 6 months ago
If the product design was copied from the factory, then you would have a cause of action for breach of contract against the factory, and the potential claim based upon copyright. You would need to file an action against both companies. The action will not be cheap, but if you have substantial damages, it may very well be worth filing an action. Your next step should be to consult with local IP attorneys to asses the case and potential damages.I hope this further clarifies. Please don’t forget to rate the question. We as attorneys are not employees of Just Answer and are not compensated or paid unless you rate the question.
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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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