Infringement

The owner of intellectual property rights always hopes that the existence of those rights is sufficient to deter others from infringing those rights.  Accordingly it is desirable to draw attention to your rights by marking your products and any literature relating to your products and service as a warning to others of the existence of your rights.  We can advise you of suitable wording.

If suspected infringement does occur your first step should be to see us to consider whether infringement has actually occurred and to consider the strength of your rights.  The best approach to take and the likely costs should also be considered.

Frequently a cease and desist letter will be the first step.  This should be discussed with us, as, particularly in relation to Patents and Registered Designs, a cease and desist letter that makes threats based on what turns out to be an invalid patent or registered design can give a right to the receiver of the cease and desist letter to claim damages on the basis of a groundless threat.

If no satisfactory response to a cease and desist letter is received then Court proceedings are the next step.  There is no agency other than the Courts to adjudicate on enforcement of intellectual property rights, except as mentioned below.  Again commencement of proceedings should be considered in depth as to likely cost, chances of success, what you are hoping to achieve, and whether there are any negative aspects you should consider.  For example and unsuccessful copyright infringement case can lead to damages against you.

Court proceedings will normally seek damages and an injunction to prevent the infringement from continuing.  It is also possible to seek an interim injunction which if granted will prevent infringement during the course of the proceedings.  If you wish to seek an interim injunction you must act quickly and again consider any negative aspects, for example if you obtain an interim injunction but ultimately lose the main action you may be liable for damages caused to the injuncted party.

Should you receive a cease and desist letter or be served with documents commencing Court proceedings you should seek professional advice immediately.  There are many variations as to what those documents may contain.  Some need immediate response as you may have a Court appearance in a little as an hour or two.  In some cases you may already be subject to an injunction, and what that covers and how you can respond needs urgent consideration.

The possible alternatives to Court proceedings are, briefly, mediation and arbitaration.  In each case the agreement of both parties to the dispute to undertake these procedures is required.  Mediation in particular which involves negotiation before a party not involved in the proceedings can achieve a quick result where the agreement reached is kept confidential.  Arbitration involves a type of litigious proceedings usually before a person who has skills in the relevant industry rather than a Judge and may be preferred in appropriate circumstances.

In summary if you are contemplating infringement proceedings consider carefully, but quickly, all the ramifications.

If you receive a cease and desist letter or are served with Court documents seek urgent advice.