Scenario: You spent five years developing a mobile app that gives football fans real-time access to the latest scores and stats. You’ve turned that invention into a small business, and although still struggling, you're finally starting to see a return on your investment. Great! Then one day, surfing the internet for what else is hot in the world of mobile apps, you see yours. But it’s not yours. It’s someone else’s—same app, same functionality, different name. Looks like they stole your idea. Now what?
Intellectual property theft is rampant
According to Today’s General Counsel, the extent of intellectual property (IP) theft is astounding, and the disturbing figures include only that theft which is actually reported:
“Figures released by the Department of Justice and various private sector institutions show an increase in computer security incidents. Many incidents are not reported, out of concern for company reputations, so the true extent of the damage, especially as it impacts intellectual property, could be staggering. Typically…the value of IP for US companies surpasses the value of physical assets.”
It’s one thing to know it happened—but can you prove it?
According to Attorney Richard Stim, author of Profit From Your Idea, the answer is “yes.” But you’ll need to get your ducks in a row to do it. Stim, whose specialty is small business copyright, patent, and trademark issues, recently explained for Nolo how to prove that your intellectual property was stolen:
- You have to prove you own the work and it’s protected by copyright: When it comes to IP theft, not having a copyright can be a drop-dead deal breaker, so make sure you have one. Also, the work must be “fixed,” meaning that it exists somewhere, such as on paper or on a disk. You have to show that it’s your work (you didn’t steal it from someone else). Finally, the work must have been created with what’s called “minimal creativity,” which is generally a pretty low hurdle—just like in math class, you’ll have to show your work.
- You have to prove infringement: If you can catch the IP thief with an exact copy of your work, you have the smoking gun—but that doesn’t usually happen because most IP thieves are smart enough to hide their tracks. But you can achieve the same result if you can prove that the alleged IP thief had access to your work and that what he’s hawking is “substantially similar” to your work. Proving substantial similarity is tricky, and often the heart of these cases. In general, you’ll have to prove that the only reasonable explanation of the similarities between his work and yours is that he copied it.
As a startup small business owner, you have a lot on your mind—getting your website up to snuff, honing your marketing strategy, paying your bills. Chances are you don’t have the time to get into the weeds fighting an intellectual property infringement case. That's why it's so important to identify and protect your IP before you get started.
If you're not ready to identify and protect your IP, or aren't sure you have any IP to protect, take our free risk quiz.