If you or your business own intellectual property rights, these are legal and enforceable rights that enable you to take action against people who infringe those rights. There are many avenues that you can pursue in taking action against infringers, ranging from a warning to initiating court action. This article will look at the various methods in place for preventing intellectual property infringement.
Make sure you can prove you own the rights
Sometimes people may question your rights to intellectual property; you will need to be able to show that you have ownership of the intellectual property and defend yourself against these claims.
Make sure you can prove an infringement has taken place
Before you go issuing letters of demands and warnings to potential infringers, it is advisable to determine whether there is actually infringement occurring. You don’t want to start making enemies unnecessarily!
But it is more than just getting on the wrong side of others; it is actually prohibited by the Copyright Act, Patents Act, Trade Marks Act, and Designs Act, to make “groundless threats” to people. A threat is considered “groundless” when the infringement cannot be proven and you may be liable for damages to a person who is affected by your groundless threat.
Applications in urgent situations
Sometimes, if you send a letter of demand to an infringer, notifying them of your intellectual property rights and their infringement may be enough for them to stop infringing. However, sometimes, sending a notice of a claim to an infringer gives them time to destroy evidence of their infringement and anything that might be used against them.
If you are concerned about the infringer trying to destroy evidence that would support your case for infringement, there are a number of applications that you could make: Anton Piller order, application for preliminary discovery, interim injunction.
Anton Piller orders
An Anton Piller order is similar to a search warrant but in civil matters. If you obtain Anton Piller orders from a court (which is not easy to do), you can search an infringer’s premises and seize items that have been specifically identified. The court must be convinced that there is a high possibility that the infringer will destroy the evidence if not seized.
In these situations, you can approach the court to seek an interim injunction, which is an order on the alleged infringer to stop their infringing action until the trial has finished, and a final decision has been made.
An interim injunction may be granted where the court believes the infringement is a serious threat and being awarded damages may not be enough to remedy the situation.
A condition of granting an interim injunction is that if it is later found that it should not have been granted, you may have to pay compensation to anyone who was adversely affected by the interim injunction.
Application for preliminary discovery
This application is used in situations where you may not know the identity of the infringer, and you need more information. A preliminary discovery may require someone to provide you with documents or evidence that assist in identifying the infringer.
As the owner of intellectual property, you can enforce your rights where they are being infringed. However, you must take care to identify the infringement. It is useful to get advice from an IP lawyer who can advise you on whether you should be concerned about intellectual property infringement and what would be the appropriate course of action in the situation.
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