Many online platforms now allow intellectual property right owners to submit take-down notices. The owner may submit a take-down notice for the platform to review if the owner believes their intellectual property right is being infringed by another person on the platform. After review, the platform will decide whether to remove the alleged infringing item.
This is generally for take-down notices but each intellectual property may have addition requirements as well. See DMCA TAKEDOWNS.
SUBMIT OR NOT TO SUBMIT?
If there is a potential intellectual property infringer, a take-down notice should be submitted. In submitting a take-down notice, there are a few factors to take into account. It is best to have a second opinion by an attorney if there is any doubts about submitting a take-down notice.
Firstly, there is usually not a cost to submit a take-down notice on platforms. However, the platform will be the one to decide whether to take the product down or not. The platform typically will require the intellectual property owner to provide evidence of infringement or ownership of the intellectual property. The platform will review and make a decision based on the evidence.
Secondly, the platform will not do extensive research on the evidence when making a decision. Recently, there have been increasing cases where an intellectual property right is improperly obtained to submit a take-down or a notice is improperly submitted on purpose. In this case, there is potential liability for disrupting another business.
POTENTIAL STEPS AFTER SUBMISSION
A take-down notice has been submitted, what are some possible next step options:
- The platform takes down the product and no additional action is taken. Removing a product may already be sufficient. The product is not on the platform anymore and it reduces competition already, which was the main goal in the beginning.
- The platform takes down the product and the opposing party reaches out regarding the take-down. Here, an owner can propose to license the intellectual property. Agreeing to a license is essentially the opposing party paying the intellectual property owner to compete. See HOW TO USE YOUR PATENTS.
- The platform takes down the product and the intellectual property owner reaches out first. If it is not enough just to have the product taken down, the intellectual property owner can also reach out to offer a license as well. Another option is to decide whether to bring a lawsuit to recover damages as well. Filing a lawsuit may end up taking a lot of time and cost a lot of money, so it will be important to determine if it would be worth the time and money to do so.
- The platform denies the take-down. If the platform denies the take-down, looking for an attorneys second opinion is a good step to take. In addition to the above action, the owner can send a cease and desist letter or a warning letter to the opposing party.