Intellectual property (IP) enforcement is evolving rapidly as law firms and IP owners increasingly leverage artificial intelligence (AI) to scan the internet for potential infringements. AI-powered search tools make it easier than ever to detect unauthorized use of copyrighted material, trademarks, and patents.

As a result, many bloggers, filmmakers, educators, and content creators are receiving demand letters and cease-and-desist notices alleging IP violations. These letters may request the removal of content, licensing fees, or even legal action. With AI automating the search process, even minor or unintentional infringements are being flagged at an unprecedented rate.

Trademark Infringement – Likelihood of Confusion Is Enough to Sue

One common misconception is that trademark infringement requires an identical match. However, under U.S. trademark law, likelihood of confusion is sufficient for a trademark owner to take legal action. If a name, logo, or branding is similar enough to cause confusion among consumers, a trademark owner may file a lawsuit, even if the marks are not identical.

Key factors courts consider in likelihood of confusion cases include:

• Similarity of the marks (appearance, sound, meaning)
• Similarity of the goods or services being offered
• Strength of the original trademark
• Evidence of actual confusion among consumers
• Intent of the alleged infringer

Receiving a cease-and-desist letter for trademark infringement should not be ignored, as failing to respond properly could lead to costly litigation.

Copyright Infringement – Statutory Damages and Attorney’s Fees Exception

Copyright owners are also aggressively enforcing their rights through AI-powered searches. Many demand letters accuse content creators of using copyrighted images, videos, music, or text without permission. Even small portions of copyrighted material can trigger enforcement actions.

A copyright lawsuit can result in significant financial penalties, especially if the work was registered before the infringement occurred. Statutory damages for copyright infringement can range from:

• $750 to $30,000 per work for standard infringement
• Up to $150,000 per work for willful infringement

Unlike most legal disputes, copyright cases allow for the recovery of attorney’s fees under 17 U.S.C. § 505, but only if the copyright was registered before the infringement occurred.

The American Rule – Attorney’s Fees Are Generally Not Recoverable

Under the American Rule, each party in a lawsuit is generally responsible for paying its own attorney’s fees, even if they win. This means that in most trademark cases and other IP disputes, the plaintiff cannot recover attorney’s fees unless a specific statute allows it or there is a contract stating otherwise.

However, copyright law is an exception to this rule. In a copyright infringement case, a court may award reasonable attorney’s fees to the prevailing party—but only if the work was registered before the alleged infringement or within three months of publication. This makes copyright registration a powerful enforcement tool, as it allows the copyright owner to seek both statutory damages and attorney’s fees.

Legal Assistance – Attorney Ernest Goodman Can Help

If you have received a demand letter or cease-and-desist notice, it is crucial to understand your rights and options before responding. Attorney Ernest Goodman offers legal representation in mediation and in responding to IP enforcement actions, helping clients navigate disputes effectively.

Whether negotiating a resolution, seeking fair use defenses, or challenging wrongful claims, professional legal guidance can make a significant difference. Responding incorrectly or ignoring a demand letter could lead to costly litigation.

For legal assistance in trademark or copyright disputes, contact Attorney Ernest Goodman today to discuss your case and protect your rights.