As far back as George Washington, military strategists have understood that the best—and sometimes only—defense is a good offense. And as the great Ron Burgundy once pointed out, “That escalated quickly.”
While these two observations seem entirely dissimilar, when you put the two together, you actually get a winning IP strategy to defend your patent.
You never want to find yourself on the defensive when you are protecting your intellectual property.
Consider two companies that are competitors in a particular marketplace, each of which makes a competing product. Company A gets into a turf war with Company B because the latter makes a product that potentially infringes on IP owned by the former. In this scenario, Company A could potentially use its intellectual property rights to push the other company out of the marketplace. This puts company B on defense.
When it comes to intellectual property lawsuits, defense is the last place you ever want to be. You spend a pile of money on attorneys, experts, and settlements, all of it usually for nothing. At best, you’ll pay a fortune in settlement costs just so you can pay a usurious licensing fee to continue selling your product. It’s a seriously bad situation. You can protect yourself by obtaining patent insurance, but you’ll still be spending a great deal on premiums, especially if you get insured after you’re accused of infringement.
It can quickly become a financially untenable situation, and your competitor—and their lawyers—will understand that quite well. They will use the fact that you’re over a barrel to get a larger settlement from you, because they have nothing to lose.
It might seem reasonable to resolve the conflict as quickly as possible and minimize your losses. However, as Ron Burgundy (and Sun Tzu) might suggest, this is when you actually want to escalate things.
Putting yourself on offense puts the other side in a position where its intellectual property is threatened, and has something to lose.
If at all possible, you have to ensure that the other side has some skin in the game. When you’re on offense at the same time as the other side, you are in a much stronger, more equitable position. If you can reasonably argue that your rights are being infringed, it’s no longer a one-sided affair. Instead, it’s a war of attrition. When the other side realizes what is at stake, they will be far more likely to call for a truce.
Here are four basic techniques for throwing IP spaghetti at the wall (or rather, your competitor) and getting something to stick:
- Get trademarks on anything you can that links your product to commerce and sales. Once you have your trademark, you can send takedown notices to any websites that use your marks to sell imitations of your products, or even just in search engine metadata.
- Copyright the original photos you use in your advertising material. Competitors who wish to counterfeit or rip off your products are lazy. They will use your photos, rather than bother with creating their own. If you protect the photos early enough, you can actually get statutory damages for copyright infringement.
- Don’t forget about design patents. In the United States, design patents—which protect how a product looks, rather than functions—are extremely powerful tools for attacking competitors who are potentially infringing on your work.
- Lastly, even if your product wasn’t your original idea, your advertising strategy, photos, and designs can serve as powerful offensive tools if you’re ever on defense. You just need to escalate quickly and make it clear to the other side that you won’t be an easy payday.
Yes, these strategies do take a bit of preparation and footwork, but this is far preferable to just rolling over and forking over a fortune, pulling your product off the market, or even going out of business.
If you need assistance with protecting your business from a patent infringement lawsuit, the Law office of Michael O’Brien can help. Give us a call at 916-760-8265, or send a message using our contact form and we’ll be in touch with you shortly.