Intellectual property (2023): Brand protection + Copyright troll

Law School

Brand protection is the process and set of actions that a right holder undertakes to prevent third parties from using its intellectual property without permission, as this may cause loss of revenue and, usually more importantly, destroys brand equity, reputation and trust. Brand protection seeks primarily to ensure that trademarks, patents, and copyrights are respected, though other intellectual property rights such as industrial design rights or trade dress can be involved. Counterfeiting is the umbrella term to designate infringements to intellectual property, with the exception of the term piracy which is sometimes (colloquially) used to refer to copyright infringement.

A more narrow definition of brand protection which focuses on trademark infringement, is sometimes used. Counterfeiting of physical goods that involves trademark infringement is indeed one of the predominant forms of intellectual property infringement. However, both copyright and patent infringement are possible without an associated trademark infringement, and both may result in loss of revenue and of brand equity. Eliminating diversion, gray market, or product theft and resale, are generally considered as part of a brand protection strategy, even though an intellectual property may not be necessarily infringed.

A copyright troll is a party (person or company) that enforces copyrights it owns for purposes of making money through strategic litigation, in a manner considered unduly aggressive or opportunistic, sometimes while without producing or licensing the works it owns for paid distribution. Critics object to the activity because they believe it does not encourage the production of creative works, but instead makes money through the inequities and unintended consequences of high statutory damages provisions in copyright laws intended to encourage creation of such works.

Both the term and the concept of a copyright troll began to appear in the mid-2000s. It derives from the pejorative "patent trolls", which are companies that enforce patent rights to earn money from companies that are selling products, without having products of their own for sale. It is distinguished from organizations such as ASCAP, which collect royalties and enforce copyrights of their members.

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