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The Business Master (4th Edition)
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chap12
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1992-10-11
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71 lines
Enforcement
After securing valuable intellectual property rights,
the owner must enforce them vigorously to derive the
maximum benefit. The ease of enforcement depends on local
law, the resources of the intellectual property owner, the
attitude of local officials, and many other factors.
In general, the United States views intellectual
property as a private right to be enforced by its owner.
Enforcement must be accomplished through local law. In
the United States and many countries, intellectual property
rights are enforced by a civil suit for infringement. The
intellectual property owner may be awarded damages or an
injunction against infringement.
In the United States, the owner may protect against
importation of infringing goods by recording a trademark or
copyright with the U.S. Customs Service. An intellectual
property owner also may bring a proceeding before the
International Trade Commission for an exclusion order to
prevent infringing goods from entering the country or a
cease and desist order to prevent an infringing use once
the goods have entered the country.
In more serious matters, criminal penalties may apply.
The "Trademark Counterfeiting Act of 1984" imposes heavy
criminal penalties for trafficking in goods or services
which bear a counterfeit mark. These penalties can amount
to a fine of as much as one million dollars and fifteen
years imprisonment of individuals. Civil penalties can
include the recovery by the trademark owner of treble
damages and attorney's fees. Ex parte seizure orders are
also authorized.
Piracy of copyrighted materials is also subject to
criminal penalties. In the United States, a person who
willfully infringes a copyright for financial gain is
subject to a $25,000 fine, one year imprisonment, or both.
If the offense involves a substantial number of infringing
copies of phonorecords or motion pictures or trafficking in
counterfeit labels for phonorecords, motion pictures or
other audiovisual works, the penalties may be as much as
$250,000 and five years imprisonment. In addition, a court
may order seizure and destruction or other disposition of
infringing copies and equipment used in their manufacture.
The Remedies Vary
Some foreign countries provide criminal penalties for
infringement, either as the exclusive remedy or in addition
to private suits. The remedies available against an
infringer will vary from country to country.
Ease of enforcement will depend on a number of
factors. If a government action is required, as with
criminal penalties, are the local authorities cooperative?
If private remedies are available, may the intellectual
property owner get an injunction as well as damages? How
long will it take to get enforcement? What methods are
available to obtain proof? These and other questions are
part of the detailed study that should be done for each
country before investing.