An unexpressed idea enjoys no legal protections. If you have fixed your idea in a tangible medium, such as by recording a song, writing a novel or creating a prototype invention, it may be entitled to the protection as intellectual property, and you may have legal recourse against someone who steals your idea. The ease with which you may enforce your rights depends on which branch of intellectual property law applies to your idea or creative work.
The first step to enforcing a copyright against an infringing party is to send a "cease and desist" letter warning against further acts of infringement. If the infringer ignores the letter, you’ll need to take legal action. The method for enforcing your copyright depends on whether or not your copyright is registered with the U.S. Copyright Office at the time the defendant infringes it. If it is not, you may file an infringement lawsuit seeking compensatory damages as long as you can prove that you suffered damages. If your copyright was registered before the act of infringement occurred or within three months of the date on which it was first published, you may seek statutory damages of up to $150,000 per act of infringement, without proving damages.
There are two ways someone can steal your invention. One way is to infringe your patent, in which case you may enforce your patent by filing a patent infringement lawsuit against the infringer. If you win, the court will issue an order prohibiting further infringement and may award compensatory damages and perhaps even punitive damages. Another way someone can steal your invention is to file for patent protection before you do. U.S. patent law is unique among world nations because it is based on a "first to invent" system rather than a "first to file" system. This means that as long as you invented first, you can petition the U.S. Patent and Trademark Office to declare an interference proceeding. If you are declared the first inventor, the USPTO will invalidate the patent and declare you the first inventor. This will give you the right to file for patent protection in your own name.
Read More: How to Patent a Drink
You may enforce your trademark in the state where you do business by showing that you used it in commerce before the other party did and that the other party used it to identify similar goods or services in the same state. To enforce your trademark in states where you are not using the mark in commerce, you must first register your trademark with the U.S. Patent and Trademark Office. After registration, you may enforce your trademark nationally against anyone who uses it to identify the same goods or services after your registration date.
A trade secret is proprietary information – such as the formula for Coca-Cola or even customer lists – that confers a competitive business advantage but has not been awarded a patent, copyright or trademark. Trade secrets are governed by state rather than federal law. To obtain trade secret protection for your idea, you must make reasonable efforts to keep the information secret. If someone steals it, you may sue the party that stole it. A court may grant one of several different remedies: it may issue an injunction preventing the defendant from using or disclosing the information; it may award you compensatory damages; or it may award you punitive damages. In extreme cases, the defendant may be criminally prosecuted.
David Carnes has been a full-time writer since 1998 and has published two full-length novels. He spends much of his time in various Asian countries and is fluent in Mandarin Chinese. He earned a Juris Doctorate from the University of Kentucky College of Law.