If you or your business believes that someone is infringing your intellectual property (IP), you need to think carefully about how you will enforce your IP rights. It is wise to refrain from threatening legal action against the infringer by first considering your options and what is involved. Your business should develop an infringement strategy that takes into account your commercial goals, needs and resources in relation to the IP. This article provides various tips for your business on what to do when your IP rights are being infringed upon.
Protect Your Intellectual Property
You should take the necessary steps to ensure that you have protected your IP as much as possible. You must make sure that you have exclusive rights to key aspects of your business identity, such as:
- business names;
- slogans; and
- logos.
Therefore, you will need to register these as trade marks.
Identify and Manage Your Intellectual Property
Once you have taken the steps necessary to protect your IP, you must be able to manage it. Ensure that you identify each piece of IP that you own and the rights attached to them. It is also critical to know which rights you have given others to use your IP, such as permissions and licences.
Your employees must also know about how IP relates to their roles within your business. Your employment contracts and client agreements should cover this issue of IP so that it is clear who owns the IP.
There are many situations where taking legal action is not ideal. For instance, it is unlikely that you would be successful in enforcing your IP rights if it is difficult to prove ownership. Other situations where initiating legal proceedings is not advisable include:
- where it is hard to prove that there has been infringement; and
- where the costs of the proceedings are more significant than any successful result of the action.
IP Records
It is also essential to keep a record of your IP registrations that you can refer to quickly when required. You can do this through an asset register. Asset registers commonly include:
- how an asset works and is used;
- its stage of development;
- the owner of the asset;
- inventors/creators/authors;
- when and how the asset was created or acquired;
- any contracts or agreements that impact the asset;
- the official IP status (e.g. registered trade mark);
- ongoing maintenance requirements (such as renewal dates);
- the value of the asset; and
- how it is used within the business.
Know Your Enemy
It is crucial not only to identify and record your IP but also to stay informed about your competitors’ activities by monitoring the market. You may opt to monitor competitors’ products and advertising to see if there is any infringement.
Pick Your Battles
You will need to assess your financial situation and available resources, consider the nature of the action you plan to take, and evaluate the potential harm that infringements could inflict on your business. Some actions may not be appropriate for the type of infringement or may not be proportionate to the situation.
If you are going to fight against an infringer, be ready to act quickly.
If you do not enforce your IP and allow other businesses to use your brand, it may become descriptive in the market. You, therefore, may weaken your reputation and IP rights. A trade mark specialist can help you determine the best course of action and any flow on consequences.
Set a Budget
Consider the value of your IP. Legal proceedings can be expensive and time-consuming. Hence, it is crucial to consider whether to pursue an infringement action and the likelihood of your success. It may be helpful to put a dollar figure on it. This way, you can balance that against potential costs for legal proceedings. An IP lawyer can similarly help you understand your options and the costs involved.
This guide explains the essentials of trade marks and the steps required to register a trade mark.
Have a Battle Plan
Determine what your goals are for taking action against an infringer. Are you looking to obtain an injunction to stop them from infringing your IP? Are you aiming to recover damages? Or are you sending a message to others about your IP? A cease and desist letter may be the first step in alerting another business that you believe is infringing on your IP rights.
Key Takeaways
Your intellectual property rights are essential to your business, and they need to be enforced effectively. Taking preventive measures and managing your intellectual property provides you with an excellent foundation in the event of infringement. Being aware of your rights and the steps that you can take will place you in a good position in case of infringement. You need to be thinking ahead and know the steps that follow when you notify someone that they are infringing your intellectual property. It is always a good idea to talk to an intellectual property lawyer who can take you through your options and what is involved.
If you need assistance registering or protecting your IP portfolio, our experienced intellectual property lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
It is important to register your IP where possible and keep a well-maintained record of your assets within your business. An IP specialist can advise you on the types of registration that are appropriate for your IP. An asset register should also be developed to allow you to quickly assess your rights, should an infringement occur.
Cease and desist letters are commonly a first step to IP enforcement. However, this strategy is not suited to every case of infringement. IP legal proceedings can be costly and time-consuming, so it is best to seek IP professional advice before alleging infringement to another party. This way, you can fully understand the costs and steps involved. An IP professional can also provide an assessment of the alleged infringement to determine the likelihood of your successful opposition.
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