INFRINGEMENT

infringement,n. Intellectual property. An act that interferes with one of the exclusive rights of a patent, copyright, or trademark owner. See INTELLECTUAL PROPERTY . Cf. PLAGIARISM. — infringe,vb.

contributory infringement. 1. The act of participating in, or contributing to, the infringing acts of another person. • The law imposes vicarious liability for contributory infringement. 2.Patents. The act of aiding or abetting another person’s patent infringement by knowingly selling a nonstaple item that has no substantial noninfringing use and is esp. adapted for use in a patented combination or process. • In the patent context, contributory infringement is statutorily defined in the Patent Act. 35 USCA § 271(c). [Cases: Patents 259. C.J.S. Patents § 427.] 3.Copyright. The act of either (1) actively inducing, causing, or materially contributing to the infringing conduct of another person, or (2) providing the goods or means necessary to help another person infringe (as by making facilities available for an infringing performance). • In the copyright context, contributory infringement is a common-law doctrine. 4.Trademarks. A manufacturer’s or distributor’s conduct in knowingly supplying, for resale, goods bearing an infringing mark. [Cases:

Trade Regulation 374. C.J.S. Trade-Marks, Trade-Names, and Unfair Competition § 85.]

copyright infringement.The act of violating any of a copyright owner’s exclusive rights granted by the federal Copyright Act, 17 USCA §§ 106, 602. • A copyright owner has several exclusive rights in copyrighted works, including the rights (1) to reproduce the work; (2) to prepare derivative works based on the work; (3) to distribute copies of the work; (4) for certain kinds of works, to perform the work publicly; (5) for certain kinds of works, to display the work publicly; (6) for sound recordings, to perform the work publicly; and (7) to import into the United States copies acquired elsewhere. [Cases: Copyrights and Intellectual Property 53. C.J.S.

Copyrights and Intellectual Property §§ 10, 41, 61, 73.]

criminal infringement.The statutory criminal offense of either (1) willfully infringing a copyright to obtain a commercial advantage or financial gain (17 USCA § 506; 18 USCA § 2319), or (2) trafficking in goods or services that bear a counterfeit mark (18 USCA § 2320). • Under the second category, the law imposes criminal penalties if the counterfeit mark is (1) identical with, or

substantially indistinguishable from, a mark registered on the Principal Register of the U.S. Patent and Trademark Office, and (2) likely to confuse or deceive the public. [Cases: Copyrights and Intellectual Property 70; Trade Regulation 311–312. C.J.S. Copyrights and Intellectual

Property §§ 84–85; Trade-Marks, Trade-Names, and Unfair Competition § 151.]

direct infringement. 1.Patents. The act of making, using, selling, offering for sale, or importing into the United States, without the patentee’s permission, a product that is covered by the claims of a valid patent. 35USCA § 271(a). [Cases: Patents 226. C.J.S. Patents §§ 400, 404, 406–407.] 2.Trademarks. The use of a mark in trade when that use causes a likelihood of confusion about the source of goods or services already identified by a similar mark. 3.Copyright. The unauthorized copying, distributing, or displaying of — or the adapting of a derivative work from — a copyrighted work. Cf. contributory infringement; infringement in the inducement. domain-name infringement.Infringement of another’s trademark or servicemark by the use of a confusingly similar Internet domain name. [Cases: Trade Regulation 350.1. C.J.S.

Trade-Marks, Trade-Names, and Unfair Competition § 119.]

infringement in the inducement.Patents. The act of actively and knowingly aiding and abetting direct infringement by another person. • Although sometimes used in copyright and trademark law to mean contributory infringement, the term is usu. reserved for the patent context. — Also termed inducing infringement. Cf. direct infringement. [Cases: Patents 259. C.J.S.

Patents § 427.]

innocent infringement.The act of violating an intellectual-property right without knowledge or awareness that the act constitutes infringement. • An innocent infringer may, in limited circumstances, escape liability for some or all of the damages. In the copyright context, damages may be limited if (1) the infringer was misled by the lack of a copyright notice on an authorized copy of the copyrighted work, distributed under the owner’s authority before March 1989 (the effective date of the Berne Convention Implementation Act of 1988), and (2) the infringing act occurred before the infringer received actual notice of the copyright. 17 USCA § 405(b). In the trademark context, publishers and distributors of paid advertisements who innocently infringe a mark have no liability for damages. 15 USCA § 1114. In both contexts, the innocent infringer is immunized only from an award of monetary damages, not from injunctive relief. [Cases:

Copyrights and Intellectual Property 52. C.J.S. Copyrights and Intellectual Property §§ 43–44.]

literal infringement.Patents. Infringement in which every element and every limitation of a patent claim is present, exactly, in the accused product or process. Cf. DOCTRINE OF

EQUIVALENTS. [Cases: Patents 226. C.J.S. Patents §§ 400, 404, 406–407.] nonliteral infringement.See DOCTRINE OF EQUIVALENTS.

patent infringement.The unauthorized making, using, offering to sell, selling, or importing into the United States any patented invention. 35 USCA § 271(a). [Cases: Patents 226. C.J.S. Patents §§ 400, 404, 406–407.]

“In determining whether an accused device or composition infringes a valid patent, resort must be had in the first instance to the words of the claim. If accused matter falls clearly within the

claim, infringement is made out and that is the end of it.” Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 607, 70 S.Ct. 854, 855 (1950)(Jackson, J.).

trademark infringement.The unauthorized use of a trademark — or of a confusingly similar name, word, symbol, or any combination of these — in connection with the same or related goods or services and in a manner that is likely to cause confusion, deception, or mistake about the source of the goods or services. See LIKELIHOOD-OF-CONFUSION TEST. [Cases: Trade

Regulation 332. C.J.S. Trade-Marks, Trade-Names, and Unfair Competition § 72.]

vicarious infringement.A person’s liability for an infringing act of someone else, even though the person has not directly committed an act of infringement. • For example, a concert theater can be vicariously liable for an infringing performance of a hired band. [Cases: Patents 287(2).]

willful infringement.An intentional and deliberate infringement of another person’s

intellectual property. [Cases: Patents 227. C.J.S. Patents § 403.]

[Blacks Law 8th]