Registering your intellectual property (IP) ensures that you have the exclusive right to use your IP, whether it is a trade mark, patent or design. For some, however, registration is not enough to prevent others from infringing your IP. We set out below three ways to resolve a dispute that arises over your IP rights.

Send a Letter of Demand

A letter of demand is usually the first step to take in any IP dispute. More often than not, someone accidentally infringes IP rights and you can send a letter of demand to stop them from continuing to infringe. This is both a quick and efficient way to stop infringement and hopefully avoid further legal costs.

A letter of demand will explicitly state your rights and entitlements regarding the trade mark, patent or design. It should set out all examples of infringing conduct and specify a period within which the infringer has time to stop. If the infringer fails to stop during this period, then legal proceedings may commence.

Remember that under certain circumstances a letter of demand may not be the best option as this will give the infringer time to hide evidence. If uncertain, it is best to consult an IP lawyer on the best approach.

Alternative Dispute Resolution (ADR)

Going to court is an expensive and lengthy process, and it is usually worthwhile to try an ADR method before heading to court. This can include:

  • Mediation
  • Arbitration
  • Expert determination
  • Case administration

If you decide to use the ADR process, it is best to find an ADR professional. The World Intellectual Property Organization Arbitration and Mediation Center (WIPO Center) provides these services specifically for resolving IP disputes, both in a domestic and international space.

ADR is preferable to resolving the dispute in court. If it works, then it will allow both parties to avoid the costs of going to court and will help resolve the dispute much faster.

Going to Court

In most cases, going to court is a last resort. However, if you have reached this stage, there are several applications that you can make in court, but before the case goes to trial:

  • Injunction: This is often the order applied for to stop the infringers from continuing their conduct, pending the outcome of a trial;
  • Preliminary discovery: To gain more information and documents about the infringing person, to identify all relevant infringing parties;
  • Anton Piller orders: To gain access and search an alleged infringer’s premises and to take any items that could relate to infringing conduct. However, this is probably the hardest court order to get approved.

You may decide to forgo the interlocutory applications and wait for the trial. IP disputes in court undergo the same formal process that other lawsuits do. As the owner of the IP right, you will need to file a notice and a statement of claim in the relevant court to start the proceedings and serve this on the infringer, who can then file a defence.

Key Takeaways

If you have had your IP infringed after registration, you have every right to assert your rights and stop the infringer from continuing their conduct. It is usually not recommended that you jump straight to going to court except under certain circumstances. A well-worded letter of demand or ADR is the recommended starting point for IP disputes. Talk to one of LegalVision’s dispute resolution lawyers if you have questions by calling us on 1300 544 755 or by filling out the form on this page.

Alexandra Jones
If you would like further information on any of the topics mentioned in this article, please get in touch using the form on this page.
  • We will be in touch shortly with a quote. By submitting this form, you agree to receive emails from LegalVision and can unsubscribe at any time. See our full Privacy Policy.
  • This field is for validation purposes and should be left unchanged.
If you would like to receive a free fixed-fee quote for a legal matter, please get in touch using the form on this page.
  • We will be in touch shortly with a quote. By submitting this form, you agree to receive emails from LegalVision and can unsubscribe at any time. See our full Privacy Policy.
  • This field is for validation purposes and should be left unchanged.

Privacy Policy Snapshot

We collect and store information about you. Let us explain why we do this.

What information do you collect?

We collect a range of data about you, including your contact details, legal issues and data on how you use our website.

How do you collect information?

We collect information over the phone, by email and through our website.

What do you do with this information?

We store and use your information to deliver you better legal services. This mostly involves communicating with you, marketing to you and occasionally sharing your information with our partners.

How do I contact you?

You can always see what data you’ve stored with us.

Questions, comments or complaints? Reach out on 1300 544 755 or email us at info@legalvision.com.au

View Privacy Policy