Intellectual Property

The Economic Espionage Act (EEA), codified in 18 U.S.C. § 1831-1839, makes the theft or trafficking in trade secrets for foreign governments, instrumentalities, or agents a criminal act.

Yes, there is a private cause of action for a violation of the Economic Espionage Act.  The EEA was amended in 2016 by the Defend Trade Secrets Act (DTSA), which created a federal private cause of action for trade secret misappropriation and underscored Congress’s desire to align closely with the Uniform Trade Secrets Act.

A copyright only protects original works fixed in a tangible medium or expression. These works are independently created by the author and possess some minimal degree of creativity.  Additionally, copyright protects a particular form of expression rather than an underlying idea itself, so a copyrightable work must be fixed in some tangible medium.

To establish felony copyright infringement, the burden falls on the Government to show that: (1) a valid copyright exists; (2) the defendant infringed the copyright; (3) the defendant acted willfully in doing so; and (4) the infringement entailed reproduction or distribution. With regard to the last requirement, it is a violation to reproduce or distribute at least ten copies of a copyrighted work valued at more than $2,500.

Under Section 507, there is a five-year statute of limitations for criminal copyright.

In the United States, trademarks, service marks, certification marks, and collective marks are protected not only by civil law pursuant to the Lanham Act, but also by criminal law pursuant to the Trademark Counterfeiting Act, 18 U.S.C. § 2320.

The elements of a violation of the Trademark Counterfeiting Act are as follows:

1. Defendant intentionally trafficked, attempted, or conspired to traffic in goods, services, labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging;
2. Defendant knowingly used or applied a counterfeit mark, which is likely to cause mistake, confusion, or deception, on or in connection with such goods, services, labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging; and
3. It is a counterfeit mark pursuant to 18 U.S.C. § 2320(f).

The Economic Espionage Act (EEA), codified in 18 U.S.C. § 1831-1839, makes the theft or trafficking in trade secrets for foreign governments, instrumentalities, or agents a criminal act.  The EEA was amended in 2016 by the Defend Trade Secrets Act (DTSA), which created a federal private cause of action for trade secret misappropriation.  Section 1832, the second offense, punishes the commercial theft of trade secrets carried out for economic advantage—whether or not it benefits a foreign government, instrumentality, or agent. This offense is more general, applies to both foreign and domestic trade secret disputes, and carries a ten-year maximum term of imprisonment.

In the United States, trademarks, service marks, certification marks, and collective marks are protected not only by civil law pursuant to the Lanham Act, but also by criminal law pursuant to the Trademark Counterfeiting Act, 18 U.S.C. § 2320.  It is intended to protect both businesses and consumers who rely on such marks to buy and sell various goods and services.

Under Section 507, there is a five-year statute of limitations for criminal copyright.  Previously, the limitations period was three years.

A copyright only protects original works fixed in a tangible medium or expression. These works are independently created by the author and possess some minimal degree of creativity. Additionally, copyright protects a particular form of expression rather than an underlying idea itself, so a copyrightable work must be fixed in some tangible medium. Generally, a certificate of registration within five years will constitute prima facie evidence of a copyright, and the production of such registration shifts the burden of proof to the defendant to challenge its validity. It should be noted that the Copyright Act does not expressly require a certificate of registration to merit copyright protection, but a registration typically is a prerequisite to certain statutory remedies, such as criminal actions.

Our Freeman Law Insights Blog provides many educational articles and resources, including, Battling th/e Counterfeiters: White-Collar Intellectual Property Enforcement.