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Has someone copied your business’ IP? Intellectual Property (IP) is a term that refers to unique and valuable elements of your business such as copyright, trade marks, designs and patents. It is these property rights that provide you with protection in the event someone attempts to pass themselves off as your business. Some IP, such as copyright, is automatically created as soon as the work itself is created. By contrast, patents require you to register your invention in order to secure legal protection. When it comes to trade marks, enforcement is a lot easier if you have a trade mark registration in place. This article sets out: 

  • a general overview of IP protection; 
  • the actions that you may take in the event of infringement; and
  • the steps you can take to prove infringement.

What Protection Do You Have?

As the owner of IP, you have the exclusive right to use and exploit your IP. 

For example, this includes licensing the use of your IP to another person or entity.

Accordingly, unauthorised use of your IP may constitute a breach of your intellectual property rights. If this happens, there are various actions you can take against the infringing party.

Letter of Demand

In general, the first step should be to reach out to the infringing party and request that they stop. Most businesses engage a lawyer to draft a letter of demand in these circumstances. The letter should: 

  • clearly demonstrate that you are the owner of the relevant IP;
  • explain how the other party has infringed your rights; and 
  • outline a timeline for the recipient to respond.  

The letter should also set out your demands in order to resolve the matter, for example, demanding that the infringing party cease use of your IP and in some cases, requesting a payment of costs, including potential revenue derived from the unauthorised use of your IP.

The letter is only a notification to the other party that you are putting them on notice and are prepared to take further action. Using a letter of demand can help you to seek an amicable resolution before commencing litigation. You should only move to this next option if the other party does not respond or agree to your terms of settlement.

Litigation

Commencing litigation requires the initiation of court proceedings to prove to a judicial body that:

  • someone has infringed your IP; and
  • you should receive some form of remedy.

Each type of IP has different requirements to establish infringement, so you should consult a legal professional if considering initiating proceedings. 

If you successfully prove infringement, remedies you may be entitled to include some form of compensation or ‘damages’ for the damage caused by the infringement. 

Remedies

Remedies are court-ordered solutions to court proceedings that aim to reflect the damage suffered by the offended party (in this situation, you). Some remedies include ‘damages’, which is monetary compensation for the damage suffered. You may also seek an ‘account of profits’, which is compensation for any profit the infringer made by using your IP. 

Other potential complex remedies include ‘delivery up’, which is essentially a court order to collect infringing products and destroy them, and ‘injunctions’, which are court orders that stop the infringer from taking certain actions. Where someone has infringed your IP, an injunction will generally order the infringing party to stop trading or using the relevant IP. If they do not comply with this order, the court may impose harsher penalties.

Proving Infringement

In many cases, a cease and desist letter will be enough to deter a third party from continuing their unauthorised use of your IP. If the matter escalates to litigation, however, be prepared to demonstrate that: 

  • you own the IP; and 
  • the third party used your IP without your consent. 

Each type of IP has different requirements to prove infringement, but generally you will need to prove that: 

  • you own or are licensed to use (and bring proceedings in respect of) the IP that has been infringed;
  • the infringing party copied all or a substantial part of your IP; and
  • the infringing party did not have the necessary authority to use your IP;

If you do not have your IP registered, but you have been trading for a significant amount of time, in some cases you may be able to rely on your ‘common law rights’ associated with the IP, such as your trade mark. To rely on your common law rights, your will need to establish that you have used the trade mark to such a degree that it is identifiable with your business. To avoid the evidentiary burden associated with establishing this, it is best to register your IP where possible.

Next Steps

Formal litigation proceedings should be a last result after you have exhausted other dispute resolution methods. If the other party does not respond or agree to your demands or settlement terms, consider looking at alternative dispute resolution options. Such options as mediation, conciliation or arbitration are essentially negotiations where both parties can discuss their interests in the matter. These options also employ a neutral third party to mediate the session. If neither parties can agree, then seeking legal assistance to commence litigation may be the next step.

Key Takeaways

IP protection is not necessarily automatic and in some cases you will need to take certain steps to be able to enforce your rights. If someone has copied your IP, you should start by getting legal advice. This will help determine if you have any grounds to take action against the alleged infringement. Next, you can:

  • contact the infringer with a letter clearly setting out the infringement, your rights and next steps that may be taken if necessary;
  • consider alternative dispute resolution options if the infringer does not respond or denies the infringement; and
  • commence litigation if you have no success with those options.

If someone has copied your IP, or you have other questions about enforcing your IP rights, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

Frequently Asked Questions

What is intellectual property (IP)?

IP refers to your business’ intangible assets. It includes copyright, trade marks, patents and designs.

What rights do I have if someone copies my work?

Your rights will depend on what work was copied and what IP rights you have. A registered trade mark offers more protection than an unregistered trade mark, for example.

How can I stop someone from copying my business’ branding?

The first step is to send a letter of demand, asking the infringer to stop. If this does not work, you may need to take further legal action.

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