Do you need to monitor the market for possible infringement?

Very often I receive a question “how do I know if my IP was infringed?” There are many ways to find it out. Certainly it depends on the IP in question and the industry it may be used at. Often it comes to the attention of the IP owners without any investigation on their part. This makes sense. Infringers are usually trying to take advantage of the known brand or copyright. To do so, they must use it in the same line of business. Otherwise, the value they may derive from the product is doubtful. Let’s say you’re selling computers under a certain trademark; a third party starts using the same name to sell cars. If that name is not associated with a car business nor implies any benefits that you may extend to your customers in a different type of business, it won’t give much value to the car dealer. But what if you are conducting your business using IP and nothing comes to your attention. Should you monitor the market? Should you conduct investigations? 

 

It is a good practice to check the use of your IP from time to time. Often it can be done simply through Google Search. Or you can set up Google Alerts for relevant key words or your brand name and will be receiving emails every time it is mentioned online. Why is it important? If a third party has been using your IP for quite some time and then you decide to go after them to stop them, other party can raise a defense of rationalization, stating that you must have known about their use of your IP due to the time period, territory, industry and other circumstances, and if you did not use reasonable efforts to oversee your IP, you took the risk. Basically you rationalized their use by your inaction. You do not have to hire a private investigator once every few months to search for the possible infringement. However, you should make reasonable efforts to guard your property.  

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