If you or your business believe that someone is infringing your intellectual property, you need to think carefully about how you are going to enforce your rights. It is unwise to threaten legal action against the infringer without first considering your options and what is involved. Your business should develop an infringement strategy, which takes into account your commercial goals, needs and resources in relation to the intellectual property.

Here are some tips for your business, so you know what to do when someone is infringing your intellectual property rights.

Protect your intellectual property

Take all necessary steps to ensure that you have protected your intellectual property as much as possible. Business names, slogans, and logos are part of your business identity and to make sure you have the exclusive right to use them, you need to trademark them.

In Australia, you don’t have to use a copyright notice to let others know that you own the copyright. However, it doesn’t hurt to do this, and it makes it clear to potential infringers that the work is yours!

Identify and manage your intellectual property

Once you have taken any steps necessary to protect your intellectual property, you need to be able to manage it. Make sure that you identify each piece of intellectual property that you own and the rights that attach to it. It is also critical to know which rights you have given to other to use the intellectual property such as permissions and licences.

Your staff also need to know about the intellectual property and how it relates to their role in the business. Employment contracts or client agreements should cover the issue of intellectual property so that it is clear who owns the rights.

There are many situations where taking legal action is not ideal. For instance, where it is difficult for you to prove your ownership of the intellectual property rights, it is unlikely that you’ll be successful in enforcing them. Other situations where initiating legal proceedings is not advisable include where it is hard to prove the there has been infringement and where the costs of the proceedings are greater than any successful result of the action.

Know your enemy

It is not just important to understand and recognise what intellectual property belongs to you, but you should also stay on top of what your competitors are doing. Depending on your type of business, you might like to keep an eye on competitor’s products and advertising see if there is any infringement.

Pick your battles

You are going to have to weigh up your finances and resources, the type of action you are going to take and the infringements. Some actions may not be appropriate for the kind of infringement or may not be proportionate to the situation.

Set a budget

You can’t afford to chase up every infringement; legal proceedings for breaches are expensive! Consider the value of your intellectual property. It might be helpful to put a dollar figure on it so that you can balance that against potential costs for legal proceedings.

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 intellectual property? Are you aiming to recover damages? Or are you sending a message to others about your intellectual property?

Conclusion

Your intellectual property rights are essential to your business and they need to be enforced effectively. Taking precautionary 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 puts you in a good position in case of infringement.

You need to be thinking ahead and know the cost and the steps that follow when you notify someone that they are infringing your intellectual property. It is a good idea to take to an intellectual property professional who can take you through your options and what is involved.

Dhanu Eliezer

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