IP Claims: What can I do if my intellectual property rights are infringed?

Written by IP Guardian on 21 July 2022

From copyrights and patents to trade marks and confidential information, your intellectual property is immensely valuable. Upholding your IP benefit is a key part of protecting your own financial situation but, unfortunately, you might find yourself in a scenario where third parties attempt to exploit your IP rights by using your intellectual property without seeking permission.

We've compiled this useful guide on how to respond if a person or organisation acts without regard to your IP rights. Read on to learn everything you need to know about what to do if your intellectual property rights are infringed.

IP Guardian can assist you to defend your intellectual property. Get in touch with us and our expert lawyers will handle the rest.

Key steps to take

Intellectual property disputes are, sadly, fairly common in the world of business. While resolving these conflicts can occasionally be costly and time-consuming, the good news is that there is a clear path to quickly getting to the bottom of issues. There are 4 key steps you should follow when your intellectual property right is being infringed.

1. Record key facts and seek legal advice

Intellectual property legal disputes can be immensely complex. Before proceeding, it is prudent to obtain specialist legal advice.

Prior to this, you should gather information regarding key facts that are in dispute, such as:

  • The time the infringing began
  • How and where the alleged infringement occurred
  • The alleged infringement
  • The name and details of the party infringing your IP rights

Ideally, you will have these facts before your legal representative sends an IP cease and desist letter to the alleged infringer about your IP claim. After you notify the alleged infringer of your complaint, they could possibly attempt to obscure or hide alleged infringing conduct, but an intellectual property lawyer is able to help you with the process of gathering evidence.

We strongly advise that you seek legal advice prior to acting to deal with possible infringement of your intellectual property rights. Intellectual property law is a subtle and complicated area of law; advice from a legal expert can ensure that you understand your enforcement rights and feel confident in your justification to threaten legal action.

2. Send an IP cease and desist letter

After you establish a reasonable basis for arguing that your intellectual property rights have been infringed, the next step is composing and sending a cease and desist letter (known as a letter of demand) to the alleged infringer. This places the infringing third party on notice regarding your allegations. It also articulates the requests you'd like met in order to bring the dispute to an end, which could include ceasing the infringing behaviour, purchasing a license, or paying monetary compensation. A well-drafted cease and desist letter can lead to disputes being resolved without needing to undertake the costlier enforcement actions of court proceedings.

We encourage you to seek and retain legal advisors before you send a cease and desist letter about the alleged infringement. The legislation prohibits a party from making ‘unjustified threats’ regarding infringement. Consequently, to protect yourself it's important that you take concrete steps to ensure that your allegation of infringement is reasonable and factual with a strong legal grounding.

You must carefully consider how you approach a party that you suspect of infringing your IP. Issuing threatening demands unsupported by evidence is not lawful. An assertion of infringement must be accompanied by evidence that supports your case. Accordingly, you should obtain legal advice as to your evidence's adequacy before you make demands to alleged infringing parties.

Writing a Letter - IP Claims: What can I do if my intellectual property rights are infringed? - IP Guardian Pty Ltd

3. Further negotiations

After you send your IP cease and desist letter, what happens will depend on how and whether the alleged infringer responds. An alleged infringer commonly seeks legal advice of their own in order to respond to your claim of infringement.

Often, parties can productively discuss settling the issue and reach a resolution that is mutually satisfactory. However, in some cases, more serious action may need to occur. An intellectual property lawyer will offer help and guidance on developing an appropriate and effective strategy to resolve the problem with the infringing party.

Plaintiffs are legally obliged to make sincere and earnest attempts to resolve a dispute before they initiate court proceedings. It's important that you have discharged this obligation prior to initiating proceedings in court, including extending to the alleged infringing party a fair chance to respond and consider the possibility of a commercial resolution.

At this point, you also might like to consider alternative dispute resolution. It is a quicker, cheaper, and usually more efficient process for resolving intellectual property disputes. Court action is time-consuming and expensive and leads to a zero-sum situation where one party wins and the other loses.

Alternative dispute resolution enables both parties to achieve a mutually satisfactory outcome that resolves the issue promptly and at less cost than full-spectrum legal proceedings. Some courts might even mandate that parties participate in alternative dispute resolution procedures before they are able to take their case to court.

4. Begin legal proceedings

If you are unable to resolve the situation with the alleged infringer, you are permitted to commence legal proceedings. This step should be a last resort since legal proceedings are expensive and innately risky. Litigation can be emotionally and financially exhausting, as well as unpredictable. You ought only to opt for legal proceedings when absolutely necessary.

Intellectual property disputes are typically filed in the Federal Court of Australia. Legal proceedings can run for several years, during which time you will be required to submit a range of documents, including your application, the statement of claim outlining your case, and relevant affidavits, and participate in hearings.

Man Completing Paperwork - IP Claims: What can I do if my intellectual property rights are infringed? - IP Guardian Pty Ltd

IP Income Protection Insurance

Enforcing and defending your IP rights from infringement can be a mammoth financial undertaking. A prudent strategy is to prepare for possible enforcement costs by taking out an IP insurance policy to cover the costs of any associated legal proceedings.

IP income protection insurance covers and is specially designed to protect your business should an IP infringement occur, as well as fund any legal case if an IP infringement claim is necessary. An IP income protection claim meets the legal fees incurred by defending or pursuing IP claims and related settlement costs. Be sure to speak with a licensed financial adviser about finding the right income protection policy for you.

Final thoughts

Your intellectual property is a vital and valuable asset. If you've discovered that competitors are unlawfully using your IP, acting immediately is crucial. If it comes to your attention that a third party is infringing your IP rights, you ought to first seek legal advice and gather information.

You should then attempt an early resolution of your claim by notifying the offending party via a cease and desist letter. If the infringing party is amenable, you can enter negotiations or alternative dispute resolution. If you and the alleged infringing party cannot put the dispute to rest, then you may have to consider taking more serious action, including starting formal legal proceedings.

IP Guardian's team of intellectual property lawyers can help you respond to infringements of your intellectual property. For assistance in defending your IP rights, get in touch with us today.

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