With everyone using the internet all over the world for almost every purpose you can think of, a person’s intellectual property can often go unnoticed amongst the masses of graphics, logos, brand names, written articles and designs.

So what do you do when you find out that someone has copied your work? While there is no clear-cut answer to this question, there are a lot of options for you to choose from to ensure that your intellectual property rights are protected. While we recommend seeking legal advice from an IP lawyer as soon as possible, it is a good idea for you to get an idea of what lies ahead for your own understanding.

What protection do I have as an intellectual property owner?

Owners of intellectual property may bring actions against people or companies who have infringed their intellectual property rights. If you are able to prove that someone has copied your work, the court may grant you a range of remedies that include:

  • Damages
  • Account of profits
  • Delivery up
  • Final injunction

How can I prove that someone has infringed my intellectual property rights?

While you may be entitled to enforce your intellectual property rights against potential infringers, it is often difficult to prove that someone has actually infringed on your rights. This is because the criteria that you have to satisfy to prove that someone has infringed your rights will depend on the type of intellectual property that you are trying to protect.

For example if you are protecting a trademark, you must be able to establish that:

  •  the infringing trademark is being used to advertise goods that are similar to the goods that you are advertising with your registered trademark;
  • the infringing trademark is sufficiently similar to your registered trademark and it is similar to the extent that customers may be confused about the origin of the product.

However as a general guide you should be able to prove, regardless of the class of intellectual property that your work is categorised under, that:

  • you either own or are licensed to use the intellectual property that you are attempting to protect;
  • there is intellectual property within the items that you are seeking to protect;
  • the infringer has copied all or a substantial part of your product; and
  • the infringer has copied your product without having the necessary licence or authority to do so.

What can I do next? 

Once you are able to prove that your intellectual property exists in a product and that someone has copied it without receiving any licence from you to do so, you can start thinking about how you would like to resolve this dispute.

The most common methods by which people resolve intellectual property disputes are as follows:

  • Issuing a letter of demand drafted by your intellectual property lawyer. This letter will set out your legal claims against the infringer and will provide a timeframe within which the infringer must respond to your demands. Your demands may be for the infringer to stop using your intellectual property, to place text on your intellectual property marking your ownership or to pay you any amounts that the infringer has earned through using your goodwill without your permission.
  • Asking the infringer to resolve the dispute through an Alternative Dispute Resolution mechanism including mediation, conciliation or arbitration.
  • Initiate court action. This option is perhaps the last step you should take after you have exhausted all other avenues of dispute resolution with the infringer.

Conclusion

Protecting your intellectual property rights can be fairly tricky and we recommend speaking with an intellectual property lawyer as soon as possible if you suspect that someone is copying your work.

For more information on intellectual property and your rights, please visit IP Australia at: http://www.ipaustralia.gov.au/

Ursula Hogben

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