23 December 2024
Your intellectual property (IP) is one of your most valuable business assets. It can include trade marks, copyrights, patents, designs, and confidential information. Unfortunately, unauthorised use of your IP by others, known as infringement, is a common risk. Here’s a step-by-step guide to address IP infringement effectively.
1. Gather Information and Seek Expert Advice
Before taking any action, gather evidence and consult with an intellectual property lawyer. Legal disputes can be complex, and professional guidance will help you build a strong case.
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What to Collect:
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When the infringement began.
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Where it took place (e.g., website, physical location).
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Examples of infringement (e.g., screenshots, samples).
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The identity of the infringer, if possible.
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Why This Matters:
Collecting evidence before notifying the infringer prevents them from hiding or altering their actions. A lawyer can also ensure your claims are valid and properly documented.
2. Send a Letter of Demand
If you have a solid case, the next step is to send a letter of demand (cease-and-desist letter) to the infringer.
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What the Letter Should Include:
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Details of the infringement.
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Your demands (e.g., stop using your IP, compensation).
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A deadline for compliance.
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Important Note:
Always seek legal advice before sending a letter. Making unjustified threats of legal action can expose you to counterclaims under IP laws.
3. Engage in Discussions and Negotiations
Once the letter is sent, the infringer may respond. Productive discussions often lead to a resolution without needing legal proceedings.
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Possible Outcomes:
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Agreement to stop the infringement.
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Compensation or other mutually acceptable terms.
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Why Negotiations Work:
Early resolution saves time, money, and resources. An IP lawyer can help you negotiate effectively.
4. Consider Legal Proceedings as a Last Resort
If negotiations fail or the infringer ignores your letter, you may need to file a legal claim.
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What to Expect in Court:
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Filing documents such as applications, claims, and affidavits.
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Evidence exchange with the infringer.
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Potential hearings and a lengthy process.
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Where to File:
Most IP disputes are heard in the Federal Court of Australia or the Federal Circuit and Family Court. -
Risks to Consider:
Legal proceedings can be expensive and time-consuming, so they should only be pursued when absolutely necessary.
Key Takeaways
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Protecting your IP starts with gathering evidence and seeking expert legal advice.
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Send a well-drafted letter of demand to address the issue early.
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Aim for resolution through negotiations before considering costly legal action.
By following these steps, small business owners can safeguard their intellectual property and prevent unauthorised use. Taking early and strategic action is essential to protect the assets that make your business unique.
