If you discover that your intellectual property rights are being infringed, what can you do?
The more valuable your intellectual property assets are to your business, the higher the likelihood of other businesses taking advantage of them. Ideally, you should avoid having to pay for the use of your intellectual property assets. Do you have a strategy to prevent this?
Even though you’ve made every effort, if someone imitates, copies, or infringes upon your intellectual property rights without your permission, what should you do? What are your options? Should you consider the costs and benefits of these approaches? Or should you simply resort to legal action?
Before deciding on the course of action to take, in general, you should:
– Identify the infringing party (including manufacturers, primary distributors, and retailers).
– Determine the extent of the issue.
– Consider whether it’s likely to escalate.
– If possible, calculate the direct and indirect damages you have incurred or may incur.
Once you have a clear understanding of the nature of the issue, then you should focus on weighing the costs and benefits of your chosen approach. However, it’s also important to remember that sometimes acting promptly is the best course of action, so don’t wait too long.
You can consider the following measures:
- If the damage to your business income, operations, or profits is deemed insignificant, you may choose to overlook the infringement. However, if the infringement is substantial or has the potential to be, you should identify the primary infringers as quickly as possible and address them promptly and systematically. Clearly, dealing with such situations requires a careful consideration of the pros and cons of your actions. You should also evaluate the chances of winning a lawsuit, the level of compensation and damages you could reasonably expect from the infringers, as well as the potential costs associated with legal representation if legal action is ultimately in your favor.
- If you are in dispute with a company with which you have a contract (e.g., a licensing agreement), check whether there are arbitration and mediation clauses in the contract. Including specific provisions for dispute resolution through arbitration and mediation can help avoid expensive litigation costs. In some cases, these dispute resolution mechanisms can be utilized even if they are not explicitly mentioned in the contract.
- When you identify someone infringing on your company’s intellectual property rights, you can consider sending a cease and desist letter to the infringing party. This letter, often referred to as a “demand letter,” informs them of the potential conflict between your intellectual property rights and their business activities (specifying the exact areas of conflict) and proposes a reasonable solution to the issue. It is advisable to seek legal assistance when sending such a letter to avoid initiating lawsuits prematurely. This approach can be effective in cases where the infringement is not international, as infringers are likely to discontinue their activities or agree to negotiate a settlement.
- In cases of international intellectual property infringement, especially involving counterfeit goods and copyright violations, you may need to seek assistance from law enforcement agencies to target infringers at their business premises, prevent infringement activities, and safeguard relevant evidence. Additionally, the infringing parties may be compelled by competent legal authorities to disclose information about third parties involved in the production and distribution of infringing goods or services, as well as their distribution channels. As an effective means of preventing further violations, law enforcement agencies, at your request, may issue orders for the destruction or removal of infringing goods from commercial channels without the need for compensation.
- You can initiate a civil lawsuit. Courts often provide various remedies for compensating the intellectual property rights owner. These remedies include damage compensation, court orders, profit declarations, and orders to surrender infringing goods to the rightful owner. Intellectual property law also has provisions for criminal liability related to the production and trading of infringing goods. Penalties for infringement-related activities may include fines or imprisonment.
In any case, before formally filing a lawsuit or taking legal action, it is advisable to consult with an intellectual property legal expert to assess the most cost-effective measures available for your company. Registering intellectual property rights with customs authorities, based on fee submissions, is also essential, particularly when dealing with counterfeit goods or copyright infringement originating from foreign countries.
