Manufacturers that make and sell mass-market retail products are constantly fighting to either keep their hard-won shelf space or secure a retail market for new products. As such, more and more of these manufacturers are turning to intellectual property (IP) law to fend off competitors. While traditional utility patents are important, current "weapons of choice" also include design patent and trade dress protections, recently noted IndustryWeek. In some cases, copyright protection is used.

Any business, particularly one that relies on innovative products or technologies, should have a policy in place to ensure that not only its patent rights, but all intellectual property rights, are protected and that it does not infringe other rights, according to Lee Fisher, a partner specializing in intellectual property law at Morgan Cole.

No matter the type of IP protection a manufacturer uses for a product — whether traditional utility patents, design patents, trade dress or, in some cases, copyright protection — it is of no use in defending or securing choice retail space if it is not asserted.

When a competing product hits the shelves and is at all similar to a manufacturer's own, first the manufacturer should demand that retailers suspend further sales of the disputed product. This places a significant burden on retailers. Should retailers continue to sell the disputed product after receiving notification, they could eventually be found to have engaged in willful infringement and be liable for damages should the original manufacturer win its case in court.

Says IndustryWeek:

To defend against such claims, the retailer will want to show compliance with an affirmative duty of due care. That generally means getting an opinion of counsel or terminating sales. This decision has to be made before any adjudication. Usually the retailer turns to the supplier for indemnification, a letter from counsel, and defense against the accusation.

The manufacturer of the new product must be quick in action. If there is concern over a design patent or trade dress claim, a quick redesign of the product's appearance may be feasible. (Of course, this often requires new molds and additional expense.) Meanwhile, further shipments of the product from abroad might be redirected to another market where the asserted IP right does not exist.

A settlement might also be worked out with the IP owner. This can involve a cash payment, sourcing, favorable manufacturing rights, marketing assistance or transfer of the product line.

The task of asserting and defending IP rights has grown more urgent with the emergence of an Internet-fueled global information economy. Just look at the Blackberry and the iPod, each having been involved and continuing to be involved in patent suits in the U.S. over recent months. As the right increases in value and market awareness, it is inevitable that others will attempt to copy it or even claim that it is a copy of theirs.