Even when we’re bringing federal trademark cases, the statute of limitations will depend on state law. There actually isn’t such a thing as such a statute of limitations for trademark infringement. The courts have decided that there is a presumption that if you waited longer than the statute of limitations in that state for a comparable tort claim, your claim is barred.
Trademark typically has what is called a rolling statute of limitations. If you wait too long, your claim is not fully extinguished but limited to the X number of years before you sued (where X is the limitations period). It cuts down the damages but it doesn’t extinguish the claim.
When it comes to copyright, there is a three-year statute of limitations. You determine it from when you did or should have, with reasonable effort, discovered the infringement. It too is a rolling statute of limitations, unless the claim has to do with ownership, in which case it’s a hard three years.
Trade secrets have a three-year statute of limitations under federal law and most states’ laws. Don’t count on a rolling statute of limitations though.
Patent law has a six-year statute of limitations. It, too, is a rolling statute of limitations.
What Evidence Is Going To Help Prove A Case Of Infringement On Copyright Or Trademark?
For trademark infringement, one of the key pieces of evidence is the commercial strength of your mark. We’re trying to figure out the extent to which consumers associate your mark with your goods and services. If you sell very few items under your mark or don’t use the mark very much in your advertising, it’s not a very strong mark because there are just not many consumers who make that connection. If you can show that you sell quite a lot, you advertise a lot, and you get this in front of a lot of customer’s eyeballs, then we can say that your mark has commercial strength.
I often find that I can’t get this evidence from the mark holders. They just don’t track it in a way that we can lay our hands on it quickly enough for a preliminary injunction. When I look at why cases lose, particularly at preliminary injunction, it is often because the plaintiff just can’t show how commercially strong the mark is. Trademark is a right that arises out of use and the more you use it, the stronger it is.
Once you have established a copyright, you own it. You don’t have to do anything special. There’s no evidence you need to be collecting. Most of the evidence is going to be in the other side’s hands. The main thing is just to keep good records related to your applications to register your works with the U.S. Copyright Office, especially when it comes to single registrations of multiple works. Otherwise, it might be hard to prove what work goes with what registration. The other only thing I would require is in a case of non-literal infringement is a chart of comparisons to make sure that there’s enough overlap that we actually have a claim. If the points of comparison are fairly minor, I’d like to know before we go forward with a lawsuit.
The main thing that we’re going to need to know about trade secret infringement is what was taken; but sometimes, you just don’t know. Sometimes, you just have lots of circumstantial evidence that something was taken and we can work with that. The sooner you can nail down what trade secrets were taken and how, the stronger our case will be at that early preliminary injunction stage. We’re going to need evidence that you took reasonable steps to protect the secret. It really is helpful to have it documented on a regular basis as part of the business’s regular practices. It doesn’t have to be in a safe. All we need is that it’s only given out to those who need it. Any outsiders who might view it sign an NDA.
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