Holiday Season IP Issues
The holidays are a season of joy, celebration, and time spent with family and friends. Of course, in recent decades, the holidays have also become synonymous with Black Friday sales, consumers fighting over popular products, and a general feeling of stress. This demand for competitively-priced, exciting new products means that companies frequently launch new campaigns during the holiday season.
This year we would like to discuss common intellectual property (IP) issues that arise during the holiday season. Trademark and copyright infringers tend to flood the market during this buying season, and online marketplaces are no exception. It makes perfect sense; the Christmas season is an extremely profitable period for sales, and companies commonly launch new brands and products as a result. The alleged infringers could be marketing legitimate but infringing goods or could be peddling in outright counterfeits. As fun as the “Ugly Christmas Sweater” may be, there may be a copyright holder to that design.
Why IP Issues Increase Around the Holidays
New products lead to new brand names, tag lines, and trademarks. Everyone is trying to launch competitive products quickly, and the result is a serious uptick in infringement claims. Many companies hire attorneys just to search online for products, tags, slogans, and images that could lead to IP disputes. And rights-holders struggle to fend off infringers who flood the market for the short holiday season. Moreover, legitimate but infringing products and counterfeits rear their heads in the online marketplace too. Counterfeiters know that policing the online market is hard during the holidays, especially fake fashion items, fake electronics, and the like.
Look-alike products created by companies to offer a cheaper alternative to a highly-popular market leader commonly result in infringement claims. But there is high demand for these products. Bargain shoppers look for gifts that are less expensive than the market leader, but that will still get their kids excited on Christmas morning. And its not just about bargains either. The online market is filled with expensive items too, such as high quality fake watches, fashion items, or electronics.
Infringement issues are even harder to manage when they occur online. If an online campaign goes viral, stopping it becomes quite complicated. This is especially true when the infringer is overseas. Rights-holder need to police ad-words, meta-tags, images, and social media campaigns for potential infringement and counterfeits.
Companies are advised to work closely with legal counsel on all campaigns, but especially during the holiday season, to ensure that their work doesn’t create IP issues. When a company’s eagerness to produce the most competitive product takes over, IP issues are common.
If, on the other hand, you believe another company has infringed on your trademark, slogan, or copyright, you have rights. But without skilled legal counsel, protecting your intellectual property can be an uphill battle. It is particularly difficult to get fast injunctions against infringers during the short holiday season, and it is often prohibitively time consuming to use the online website dispute resolution mechanism to shut them down.
As stated above, IP issues can be especially difficult to deal with when they originate overseas. Registering trademarks and copyrights with the US Customs agency can help, but this process can be extremely complicated and lengthy, and then rights-holders have to help Customs stop infringing imports at the port of entry.
What About Patents?
Many fail to consider that patents also cover holiday items. For example, many toys are claimed in patents. Many patented electronic items have the highest sales in the holiday season. However, patents don’t guarantee protection, either. Enforcing patents is generally time-consuming and costly, and there is no guarantee that any injunction could issue timely results.
And when a rights-holder uses its patent, trademark, or copyright for disruptive purposes, the efforts can backfire. If a competitor can establish that the rights-holder waited until the holiday season to sue and disrupt the market, the competitor could argue that the lawsuit was filed for anticompetitive reasons.
How Upadhye Tang LLP Can Help
If you believe that another company has infringed on your rights, the skilled legal team at Upadhye Tang LLP can help. We will put together the strategy on enforcement of rights and help you find defendants, use online shopping dispute resolution, shut down infringing websites, and obtain injunctions. On the other hand, if you are being sued for copyright or trademark infringement, we can help provide Freedom to Operate (FTO) opinions, prepare for potential defense of TRO’s or PI’s, seek cancelation or invalidation of the rights, and assist with negotiating licenses. If you have any type of IP issue, we can help. Contact Shashank Upadhye of Upadhye Tang LLP today at (312) 598-2610 or shashank@ipfdalaw.com about your case situation.
