How do you prove infringement

If this fails however you should immediately contact an attorney. This is often step one in legal action, but is not always appropriate. Actual damages are the amount of profit lost by the copyright owner directly due to the infringement claimed.

Usually, expert testimony is offered to determine the actual damages suffered by the claimant, but even so, it is often difficult to determine exactly how much profit was lost by the claimant that can be directly traced to the infringement.

As a result, clients often do not recover actual damages. This is similarly difficult to precisely prove. Recovery of statutory damages requires that the plaintiff had registered their copyright with the United States Copyright Office prior to the infringement taking place. Statutory damages as defined by 17 U. The actual amount, in either case, depends on the severity of infringement as well as the financial status of the infringing party.

It is important to note that copyright claims are subject to a three-year statute of limitations in accordance with the decision in Petrella vs MGM, Inc. One must file a claim of copyright infringement within three years of the infringement taking place.

This means that each infringement has its own three-year statute of limitations. This article contains general legal information for educational purposes only and does not constitute legal advice.

Justin Sterling, Esq. Sterling has been involved with the entertainment industries for over a decade. Many of Mr. Sterling's clients include writers, producers, creative artists, and investors from across the world.

He is committed to representing clients and serving the legal community with the utmost professionalism and compassion. The distinctiveness of your trademark is important. Marks are generally classified in categories of increasing distinctiveness:.

If you have registered your mark already, you have already established the distinctiveness of your mark and the first element of your trademark infringement case. The process of registration provides you with proof of the validity of the mark, your ownership of it, and your exclusive right to use it. Registration also provides you with a strong legal presumption that the trademark is protectable. Once you show proof that your mark is registered, the court will review such facts as which party first used the trademark, whether you allowed the mark to lapse due to inactivity, and whether you kept up with trademark renewals and updated contact information.

The second element of your burden of proof is the element that is usually the focus of the trademark infringement litigation.

In evaluating the likelihood of confusion about the source of the products or services, the court will consider the following facts:. This can happen as long as the goods and services are sufficiently different that no confusion is likely. The cost of litigating a trademark infringement case can be significant.

Additional Elements for Criminal Copyright Infringement. Copyright infringement could be a criminal offense if the alleged infringer meets two additional elements.

Federal appellate courts are split on what prosecutors must prove:. Most courts have adopted the latter standard, requiring proof beyond a reasonable doubt that a defendant intended to infringe a copyright. Prosecutors must show that a defendant intended to make money or obtain some other gain from their infringement.

It is not necessary to show that they actually gained anything. Legal Resources Business Litigation. Elements of a Civil Copyright Infringement Claim The plaintiff in a copyright infringement lawsuit has the burden of proving two elements: that they own a copyright, and that the defendant infringed it. The Plaintiff Owns a Valid Copyright To establish ownership of a valid copyright, a plaintiff must demonstrate that the work is original, and that it is subject to legal protection.

Certain works are not subject to copyright protection. These include: Logos, business names, or brand names, which might be subject to trademark protection; Processes or systems, which might be subject to patent protection; Information that is generally known to the public; Statutes , court decisions, and other public materials; and Ideas and concepts. Additional Elements for Criminal Copyright Infringement Copyright infringement could be a criminal offense if the alleged infringer meets two additional elements.