Intellectual Property Concerns for Texas Businesses

robind Business, RealEstate

Your business’s intellectual property may be among its most valuable assets, and protecting those assets is critical to your company’s success.

In this article, we will discuss how your Houston, Texas intellectual property lawyers can help you to understand and protect your intellectual property rights, including:

  • Intellectual property concerns when buying or selling a business,
  • Protecting your intellectual property rights by registering your copyrights, trademarks, and patents, and
  • Defending your intellectual property rights by taking legal action when you discover copyright infringement, trademark infringement, or patent infringement.

Intellectual Property Concerns When Buying or Selling a Business

When buying or selling a business in Texas, you must consider the business’s intellectual property rights including:

  • Copyrights,
  • Trademarks,
  • Patents, and
  • Trade secrets.

Will the intellectual property be transferred with the sale of the business? Will some be transferred, and others retained by the prior owner? Do the business’s intellectual property rights increase the value of the business? Are they the primary value of the business?

In many cases, a business’s name, website, logo, patents, or trade secrets are what the purchaser is paying for – the details of what is being transferred must be negotiated and clearly defined in the sales agreement.

Protecting Your Business’s Intellectual Property Rights

Whether your business is brand new or well-established, you should 1) identify the intellectual property that drives your business and brings in the customers and 2) take steps to protect your intellectual property rights.

The steps that you will need to take depend on the unique nature of your business and the intellectual property that you need to protect. For example, your intellectual property lawyer can help you to:

  • Register copyrights for original works including artistic or literary projects,
  • Conduct trademark searches to identify unique names for your products or services that are not already in use by another business,
  • Register the trademarks that identify your company, products, and services,
  • Register your patents to protect your ideas or inventions, or
  • Protect your trade secrets with non-compete agreements, non-solicitation agreements, confidentiality or non-disclosure agreements, trademarks, copyrights, licensing agreements, or technology development agreements.

Defending Your Business’s Intellectual Property Rights

Your Texas intellectual property lawyer can help you to defend your intellectual property rights as well. Whether it is through negotiations, cease and desist letters, or litigation, your attorney can help you to stop the unauthorized use of your intellectual property and recover damages in court for the harm that the infringement caused to your business.

Copyright Infringement

If someone uses your protected works without your permission, you may have the right to demand that they stop or sue them for damages based on the infringement.

What is covered by copyright?

Although you have greater protection if they are registered, you automatically have a copyright in any work the moment it is created. This could include any written or recorded material like:

  • Books,
  • Movies or theatrical productions,
  • Websites,
  • Blog posts,
  • Guides, articles, manuals, or
  • Any original work of authorship that is “fixed in a tangible medium of expression.”

Depending on the circumstances, you might be able to:

  • Send a copyright infringement notice that identifies the infringing work and details about when, where, and how the infringement occurred, and demand that the person or business cease using your copyrighted material immediately,
  • Send a DCMA (Digital Millennium Copyright Act) takedown notice to a webhost demanding that they remove the protected material, or
  • File a lawsuit asking the court for monetary damages based on the infringement.

Trademark Infringement

Trademark infringement is the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services.”

Another business’s use of your name, logo, or other “mark” on their products can be devastating to a business, resulting in 1) financial losses when people purchase the “fake” product instead of yours and 2) reputational damage when the “fake” product is of a lower quality than the product or services that you provide.

What can you do if someone is infringing on your trademarks?

Depending on the circumstances, your attorney may be able to help you:

  • Resolve the dispute out of court,
  • Get an injunction from the court ordering the other party to stop using your trademarks,
  • Recover monetary damages that may include both 1) the other party’s profits and 2) the damage that was done to your business by the trademark infringement, and
  • Recover your court costs and attorney’s fees.

Patent Infringement

Under 35 USC §271, any person who “makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent” is infringing the patent.

You can permit individuals or businesses to use your invention, usually in the form of licenses, but it is patent infringement when someone uses your invention without a license or when they exceed the scope of the license.

If someone is using your patented invention without permission, you may need to act fast to defend your intellectual property rights. Your attorney may be able to help you to:

  • Resolve the dispute out of court by negotiating a license fee,
  • Get an injunction from the court ordering the other party to stop using your invention,
  • Get a court order ordering the other party to pay royalties in exchange for a license to continue using the product, or
  • Recover treble (3x) monetary damages as well as interest and court costs.

Please feel free to contact one of our Murray Lobb attorneys for advice on establishing, protecting, and defending your business’s intellectual property rights, including copyrights, trademarks, and patents.

We also remain available to help you with all your general business, corporate, and estate planning needs.