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- Enforcement
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- 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.
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- In general, the United States views intellectual
- property as a private right to be enforced by its owner.
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- 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.
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- 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.
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- 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.
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- 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.
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- The Remedies Vary
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- 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.
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- 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.
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