IP Infringement Resolution Methods

In a world where it can be increasingly challenging to come up with unique and innovative ideas, having your idea infringed or copied without your consent is rightly concerning.

Your intellectual property is incredibly valuable, however, this value is diminished if infringed. So what rights do you have, if any, should you discover that your IP has been utilised without consent? Thankfully, there are numerous avenues and resolution methods available to help you deal with IP infringement.

At IP Guardian we help mitigate the risks of your IP rights being exploited and can support you to navigate intellectual property disputes should they occur. With decades of experience in this field, we're the team you can trust.

What Is Classed as IP Infringement?

Generally, any use of your trademark, copyright, patent, design or similar that is used without your express consent is considered to be IP infringement.

IP Infringement comes in several forms including but not limited to:

• Copyright infringement - This can include the unauthorised use of a photo, song, writing, video or similar.
• Trademark infringement - Also covering counterfeiting, trade mark infringement involves the use of a word, symbol, phrase or logo design without permission that may confuse consumers between the original and the copy. It may also infer an incorrect affiliation or sponsorship designed to benefit the infringing party.
• Patent infringement - Any reproduction, copy, use or sale of an invention without permission may be classed as patent infringement.
• Rights of publicity - this protects individuals from their name, image, likeness or similar being used without consent in a commercial capacity.

Each IP right is protected by specific legislation. The action taken with regards to remedying the infringement or awarding of compensation will be determined by a court in line with this legislation.

IP Disputes And Australian Law

Under Australian law, your IP rights are protected. While the law recognises these rights, it is up to the owner of the intellectual property to enforce these rights.

Any legal proceedings regarding IP rights must be launched by the IP rights owner and will be addressed under the applicable national law.

Resolving IP Disputes - Court Alternative Resolution Methods

There's no denying the seriousness of infringing on intellectual property. However, resolving disputes need not always lead to court proceedings. Court litigation is both time consuming and expensive, for this reason dispute resolution via mediation can be a suitable alternative.

Alternative Dispute Resolution (ADR)

Resolving IP disputes can be incredibly complex, often needing to address technical issues as well as accounting for multiple jurisdictions covered in the infringement.

When an individual opts for an ADR process rather than attend court, they are given more control and flexibility in how the infringement is addressed.

Depending on the type of ADR chosen, this can provide the ability to appoint chosen experts with the correct technical background and set conditions the IP rights holder feels are suitable.

One of the complexities linked with IP rights are that they may need to be litigated in many jurisdictions. Choosing arbitration, IP rights holders can address and enforce these rights in every applicable jurisdiction in the one ADR process.

For this reason ADR is often preferred as it provides benefits such as saving time and money in a single process.

Types Of ADR

There are three forms of ADR most often used as IP infringement resolution methods. You may elect to undertake a form of ADR independently, ahead of court litigation or it may be court-ordered.

Mediation

In mediation a neutral third party or mediator is assigned to help both parties agree on an outcome. Both parties meet at a designated mediation centre to discuss the issue together with the mediator acting as a guide.

As legal proceedings can damage a brand's reputation, the confidentiality offered by mediation is often beneficial. Utilising a mediator can also help to preserve relationships or business objectives when the dispute is between business partners and delivers quicker resolutions than other methods.

Perhaps the leading motivation for pursuing mediation is that you maintain a significant level of control over the outcome. A binding decision handed down by state courts or the federal court could see you dealing with an undesired result.

Arbitration

Involving one or more arbitrators, the arbitration process sees the dispute submitted for review without either party being present. Both parties agree with the information submitted and must be prepared to accept the binding decision made by the arbitrators.

Arbitrators review the most pressing issues and provide evidence in conjunction with applicable law linked with the IP dispute. Parties do not have the opportunity to leverage control or contest the decision.

Expert Determination

In some circumstances disputes may require a specific issue to be addressed by subject matter experts. Detailed concerns related to copyright disputes or patent infringement cases may be better served by expert determination as they will be reviewed by specialists in these areas.

The downside to expert determination is that again, you are relinquishing control. Mediation or litigation does provide an individual with more influence and legal safeguards by comparison.

IP Infringement By An International Party

The IP dispute resolution process is not limited by international borders. You are also able to protect your IP rights and stop infringement coming from other countries throughout the World Intellectual Property Organization (WIPO). WIPO, the World Intellectual Property Organisation,  has several services available that are designed to support claims and resolve disputes regarding IP infringement by overseas parties.

WIPO is particularly specialised in IP and technology dispute resolution. WIPO arbitration is easily accessed and forms part of a specialised agency of the United Nations.

How Can I Protect My IP And Avoid Disputes?

Of course, the best way to avoid IP disputes is to be proactive. The creation of patents, a trade mark, registering your designs and/or copyrighting your IP is the best way to protect yourself. This deters third parties infringing goods or infringing products and ideas that belong to you and makes dispute resolution easier.

Providing clear evidence that you own the idea or product being disputed is the best way to achieve the desired outcome.

For most businesses and business owners the successful commercialisation of their product relies on its uniqueness and quality. IP infringement dilutes your market share and the potential of your idea to thrive which is why it is essential to challenge the other party as an IP rights holder.

How IP Guardian Can Help

As dedicated patent and trade mark attorneys IP Guardian are highly skilled experts at protecting intellectual property. With our support, your latest innovations and brands are protected and as a result, so are your earnings.

Not limited to Australia, our counsel and expertise is available to protect your rights in New Zealand and other overseas locations. We ensure all key issues linked with your unique idea, innovation or design are accounted for and registered as your intellectual property. This can help to avoid infringements and is also highly beneficial at achieving optimal dispute resolution outcomes and avoiding IP litigation.

Our legal services are both competitively priced and comprehensive, ensuring that every business from a small start-up to a large-scale enterprise can obtain quality IP protection. Servicing Sydney, Melbourne, Brisbane and the Gold Coast it has never been easier to ensure your ideas remain exactly that – yours!

To speak with one of our leading patent and trade mark attorneys, contact the team today on 02 9071 0130 and book your free initial consultation.

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Barry Meskin

Registered Patent and Trade Mark Attorney with significant experience obtaining all forms of registered intellectual property. I hold a Bachelor of Science in Engineering, a Masters of Business Administration and a Masters of Intellectual Property. I’m passionate about showing my clients how they can protect their brands through trademark registrations.