If you are concerned that someone is infringing your intellectual property, you need to let them know! There are a number of ways that you can enforce your rights.

When choosing how to proceed, it is important to keep in mind the nature of the infringement, the value of the intellectual property, the nature of your rights and the costs involved.

Cease and Desist Letter

If you believe someone is infringing your intellectual property rights, you can send them a letter of demand.

The purpose of the letter of demand is to let the infringer know that you are the owner of the intellectual property, that they have infringed your rights, and what they need to do to avoid further action.

There are five items you need to cover in your letter of demand:

  1. Ownership – Explain to the infringer that you own or are the exclusive licensee of the intellectual property rights and, therefore, are entitled to enforce those rights.
  2. Infringement – Identify the conduct that constitutes infringement of the intellectual property rights and provide examples to the infringer.
  3. Law – It is useful to tell the infringer the specific sections of law that have been infringed so that they understand the basis for your letter.
  4. Time period – Give the infringer a period in which they need to respond. The response generally involves the infringer giving an undertaking that they will stop the infringing conduct, return your intellectual property if appropriate and provide you with information so that you can claim for compensation.
  5. Further action – You should let the infringer know what your next steps will be if they do not respond to your letter of demand within the specified time. For example, if they do not meet your demands, you will initiate legal proceedings against them.

Out of court settlement

Alternative dispute resolution is a quicker, cheaper and often more efficient way to resolve disputes relating to intellectual property.

Court action can be expensive and time-consuming, and will result in a win-lose situation. Alternative dispute resolution means that parties can be assisted in coming to a solution with which both parties can live.

You can be creative in your solutions as opposed to being handed down a decision by a court. Some courts may even order the parties to participate in alternative dispute resolution and if that fails, then taking action in court.

Court action

If your cease and desist letter is not responded to, you may wish to consider initiating legal proceedings. Bear in mind that legal proceedings relating to infringement are expensive, and you will need to be able to prove your ownership of the intellectual property and the other party’s infringement.

Conclusion

If you own intellectual property rights, and you believe someone is infringing them, you can enforce your rights. You should choose carefully how you assert your right and consider what action is the most appropriate for the situation. An intellectual property professional will help you assess the situation and determine what steps you can take.

Dhanu Eliezer

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