IP Infringement: What Is It & How to Protect Against It

As a business owner, Intellectual Property (IP) is one of your most valuable assets. It is an essential part of ensuring that your lucrative products, services, processes, and ideas are not copied or stolen. As the owner of IP rights, it’s up to you to make sure that they are enforced. Nobody will secure or enforce them for you.

We've prepared this guide to help you thoroughly understand this crucial issue. Read on to learn about what IP infringement is and how you can protect your business and brand from it.

Are you looking to safeguard your business's intellectual property? IP Guardian can help. Contact us to book an appointment with one of our friendly experts today.

What is infringement of intellectual property?

Intellectual property infringement occurs when an intellectual property right of work or product that is protected by intellectual property laws is exploited or used without consent by a competitor, past or present employee/contractor, or anybody else.

What is considered intellectual property infringement depends on the specific IP right in question — each kind of intellectual property has its own legislation.

There are a variety of different kinds of IP infringements, including:

Copyright infringement: A copyright is a legal right belonging to the creator of original work, such as a song or novel. Copyright infringement occurs when somebody copies or replicates this work without having obtained permission to do so.

Trade mark infringement: A registered trade mark is a symbol, design, word, or phrase that uniquely identifies an entity or the source of goods or services. Trade mark infringement involves unauthorised trade mark use in a way that is likely to cause consumers to believe there is a link between the product or service and the owner of the trade mark.

Counterfeiting: Counterfeit products are unauthorised or fraudulent copies of genuine products that intentionally deceive customers about their authenticity.

Patent infringement: A patent protects an invention from unauthorised sale, use or duplication. They can cover anything from designs to processes. Patent infringement is exploiting, creating, using, or selling a patented invention without the express permission of the patent owner.

Design Infringement: A design registration protects the unique visual appearance of a product. They can protect most physical products. Design infringement is when someone else uses your design without the permission of the design owner.

What is an example of intellectual property infringement?

There are a vast number of ways in which intellectual property may potentially be violated. What is considered intellectual property infringements can include:

• Using a name or logo which deceives buyers about the brand they're purchasing
• Recording a movie without authorisation
• Duplicating an existing patent and presenting it as though it is new
• Manufacturing patented goods without an appropriate licence

What are the remedies for infringement of intellectual property rights?

Intellectual property rights grant their owners the ability to exclusively use intellectual property. If another party infringes these exclusive rights, the intellectual property owner can seek compensation and access a range of available remedies.

Intellectual property can be bought, sold, and leased just like physical property, and IP infringement in Australia has similar remedies to other property rights. If an IP owner successfully pursues these rights legally, the court can award a number of different remedies.

Damages

Infringement may result in compensation being paid to the owner by the infringing party, or, if the infringing party has IP infringement indemnity the indemnifying party.

Account of profits

If infringers have gained financial benefit through their infringing behaviour, the court can order that the owner be paid all profits accumulated from improperly using their IP.

Delivery up

In instances where copyright infringement has occurred, the owner of the copyright may be entitled to take possession of those goods.

injunction

There are two types of injunctions. An interim injunction is a temporary order preventing further infringement while the court decides the merits of a case. If the court finds that infringement has occurred, it can then order a permanent injunction. This prevents the infringer from engaging in further infringing conduct. The infringing party or parties will require a licence from the owner of the IP if they wish to continue their conduct.

It should be kept in mind that in all these cases if the IP owner is not successful in their legal action, they may be required to pay the legal costs of the defendant.

Is going to court the only method for enforcing intellectual property rights?

Not everyone needs to go through the court system to enforce their IP rights. Alternative approaches are also possible:

Alternative dispute resolution

Litigation in the court system is expensive and Alternative Dispute Resolution (ADR) approaches are increasingly popular. ADR is less expensive and more efficient compared to formal legal action, as well as protecting confidentiality and reputation. There are three main kinds: mediation, arbitration, and expert determination.

• Mediation involves a neutral third party, known as a mediator, assisting all parties to come to a satisfactory agreement.
• Arbitration incorporates an arbitrator selected by both parties reviewing the case, whose decision is binding.
• Expert determination sees parties submit their dispute to one or more experts to make a decision about what should be done.

Letter of demand

A legal representative can send a letter to an infringer requesting that they stop infringing IP rights. They may not have been aware that they were infringing rights, or did know but wanted to test the owner's appetite for enforcement action. A letter of demand often is enough to stop intellectual property violations.

Grant a licence

After receiving a letter of demand, an infringer is able to request that an owner grant them a licence, which allows them to use IP in exchange for paying royalties. It's up to the owner to decide whether or not to grant the request.

How do you protect IP from infringement by others?

Infringement of IP rights can undermine your market share and profitability, as well as harm the reputation of your business and its product or service. Guarding against IP infringement is of crucial commercial importance, and developing an infringement strategy is essential to the health of your business. An IP protection infringement strategy should always be tailored to the resources and requirements of your business. Strategic analysis should assess your IP rights and what actions you'll take in case of infringement.

Infringement strategies include elements such as:

• Registration: A key part of protecting your IP is registering it — leaving it unregistered is unwise. During this process, you ought to inspect patents and other IP databases to confirm that your ideas don't themselves infringe on the existing intellectual property rights of others.
• Prevention: Where possible, implement technologies for reducing the opportunity for IP infringements. The best way to avoid IP infringement is to not allow it in the first place.
• Detection: Consistently inspect what products or services your competitors are offering and check that they're not violating your IP rights.
• Enforcement: Develop a plan for what level of enforcement action different infringements will attract. As part of this, you should assess the extent to which you can defend your IP and what likely outcomes will be.
• Budget: Legal proceedings to enforce IP rights can attract significant legal fees. You'll need to consider the time and expense of undertaking such actions and compare the cost of action with the financial value of your IP.

Is securing my intellectual property worth the time and money it takes to enforce?

Yes, registering intellectual property is vital in today's world. While enforcing intellectual property can be an intense process, it is comparatively rare. Very few businesses ever need to take legal action. The simple act of possessing intellectual property rights can serve as a deterrent to infringers. Most people and businesses won't deliberately infringe your intellectual property rights if they know you have the ability to obtain damages against them.

In the case that you do have to enforce your IP rights, you are also protecting the profitability of your business. For example, if an infringer is fraudulently selling goods that customers mistakenly believe they are buying from you, you're missing out on sales and running the risk that your reputation will be damaged. Either way, your business is losing income.

Another thing to consider is that if you don't register your intellectual property, a third party may register it as their own, forcing you to pay royalties or cease using it. This could potentially destroy your business.

There is a very good reason why most businesses take steps to secure their intellectual property, and why there are such many trademarks, copyright, design, and patents. Because it is prudent and necessary for a business to protect itself and its brand, processes and products.

Protecting your IP is not just your right — it's your responsibility. If you would like to obtain legal advice on identifying and protecting your valuable IP, contact IP Guardian today.