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What is Acquiescence, and How Can it Affect My Intellectual Property?

Ever wonder why big brands sue “the little guy”? For instance, the high school is being sued because their logo looks a lot like a popular national college. Or your local community theater finds themselves battling a multinational entertainment company because their production of a popular play veers too close to the copyrighted movie adaptation. Or you read that your favorite musician is facing a suit because the guitar solo sounds a little too much like one that’s come before.

It’s not that the brands are being greedy. It’s really about acquiescence. A company’s ability to maintain its intellectual property is key to its continued profitability. Otherwise, countless competitors would spring up and profit off their hard work.

The critical concept of acquiescence can sometimes rob copyright holders of their ability to hold a copyright, trademark, or patent if they delay or refuse to take action on even what may seem like the mildest encroachment of IP law.

What is Acquiescence in Business Law?

The term acquiescence refers to the implicit consent given through a lack of objection or a lack of action when one knows that another is infringing on their rights. In the context of business law, the term acquiescence often exclusively pertains to a particular legal defense of intellectual property theft which hinges on the idea that a lack of objection (or a delay in objection) to the use of your IP signifies your consent.

Imagine a new company is designing a logo to brand their merchandise, and they become aware of the fact that their logo somewhat resembles that of a competitor’s logo. The company sends in their preliminary design to the competitor, asking if they can use the mark. The company does not respond (or, alternatively, responds affirmatively), but then years later files suit, claiming that this new company has infringed on their trademark. Legally, the use of the trademark would likely be defensible, as the company acquiesced to the use of its trademark.

When a company is aware of an infringement and their rights and they still choose to neglect action, that may legally be considered a form of consent for others to use their intellectual property. As you may imagine, this poses a major issue for holders of trademarks, patents, and copyrights, and necessitates quick legal action on their part in order to maintain their right to exclusive claim.

Courts may interpret acquiescence in a variety of ways and may count very different criteria as signs of your acquiescence. In general, however, a few criteria are used to determine whether the acquiescence defense can be used in the case of infringement:

  1. The copyright holder assured the user that they could use the trademark or otherwise raised no objection to the use of the trademark
  2. There was a significant delay between when the copyright holder became aware of the use of the mark and when legal action was pursued
  3. This delay would cause the user undue prejudice, which can result in potential loss of revenue, and other issues

How Can You Defend Yourself Against Claims of Acquiescence?

Being unable to defend yourself and your company against the use of your intellectual property is a highly unpleasant prospect. Fortunately, it’s possible to defend yourself against claims of acquiescence with a little bit of vigilance. Acting swiftly as soon as you’re made aware of the use of any of your intellectual property can help prevent defenses of acquiescence. Additionally, consulting with an experienced Intellectual Property lawyer when faced with potential infringement can help you to determine whether or not legal action is needed.

At Trembly Law, we have a team of experienced attorneys who are ready to defend your intellectual property. Need to get in contact with a trademark lawyer? Call Trembly Law Firm at (305) 985-4579 today, and we’ll help you protect your business from potential infringement.

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