28 August 2026
Assuming the other side is trying to win is probably one of the most expensive mistakes an Australian or New Zealand business ever makes in an IP dispute. Surprise, surprise — very often, they're not.
So what are they actually doing?
Nobody sends a cease-and-desist by accident. But that doesn't mean they're chasing a courtroom victory.
A dispute is a purchase.
The other side is spending money to buy something. Your only useful job, before you spend a cent replying, is working out what.
Sometimes they're buying time. A company mid-raise, mid-sale or mid-launch is exquisitely sensitive to a live dispute, and everyone in the market knows it. The claim doesn't need to be strong — it just needs to be pending at the wrong moment, so your investors start raising eyebrows and your acquirer starts asking for indemnities.
Sometimes they're buying a discount. The letter is the opening move of a negotiation you didn't know you were in. They want a cheap licence or a quiet settlement, and litigation is just the expensive way they chose to say hello.
Sometimes they're buying a story. The point is the press release, the customer whisper, the doubt planted in your market. They can lose the case outright and still get what they came for — because the headline lands and the correction never does.
And sometimes, yes, they genuinely want to win on the merits. That happens too. But if you assume it by default, you'll fight the wrong war, at the wrong cost, on a timeline that suits them, not you.
They are not suing you to win
When the letter from lawyers arrives, something primitive kicks in. Your first instinct is: they're wrong, and I can prove it. Part of you is already drafting the reply that ends the matter, wins the point, and makes them regret the day they picked a fight with you.
Sit down. Put your (entirely justified) righteousness in a drawer for a minute.
None of this means silence
The clock in that letter is real, and it can move faster than most founders expect. In both Australia and New Zealand, an application for an urgent interlocutory injunction can be sitting before a judge while you're still deciding how offended to be. So reply — briefly, concede nothing, acknowledge receipt, and buy yourself the fortnight you need to work out what they're actually buying.
A holding letter costs you almost nothing and keeps every option open. Silence costs you a story — the story that you're a company that didn't take the matter seriously. That plays remarkably well in front of a judge deciding whether to grant something urgent.
The Australian and New Zealand court system changes the calculus
Before you reach for instincts absorbed from American courtroom drama, remember where you're actually standing.
This is not a world of runaway juries, punitive damages and endless discovery. In Australia and New Zealand, costs generally follow the event — the loser typically contributes a substantial chunk of the winner's legal costs. That cuts both ways: it raises the price of a weak claim, and it raises your exposure if you fight a strong one all the way to judgment and lose.
Injunctions, not damages, are the real weapon here. A well-timed interlocutory injunction in the Federal Court can stop you selling a product while the substantive dispute is argued out over the following year — and that's your revenue, switched off, now.
The other side knows exactly which court and which jurisdiction suits them. So the calculus isn't "are we right" — it's: what can they actually do to us, how fast, and what is this costing us simply by staying open to it? Being right is necessary. It is nowhere near sufficient.
Winning the point, losing the moment
Imagine you fight, because you're right. Eighteen months later, you win. A clean, satisfying, legally immaculate victory.
And in those eighteen months, the capital raise fell through, the launch window closed, the customer who got nervous went elsewhere, and the competitor who filed the thing achieved everything they wanted while you were busy being correct.
You won the point. You lost the moment. And commercially, the moment was the only thing that mattered.
This is why a disciplined response to a dispute never starts with "are we right." It starts with two colder questions:
- What do they actually want?
- What is this costing us simply by continuing — in attention, in fundraise chill, in deal friction, in founder hours that should be spent building the company?
Only then do you decide whether to fight, settle, stall, or make the whole thing disappear with a commercial move that has nothing to do with the law. Sometimes the strongest answer to a legal attack isn't a legal answer at all — it's a business one that removes the reason they came in the first place.
And then what?
The letter is on your desk.
Take it personally, and you hand the other side exactly the timeline and drama they were shopping for. Read it commercially, and you shrink the whole thing back to its real size: a move, with a motive, that you can meet, price, or sidestep. You might still fight — but because it serves the business, on your timing, not because someone poked your pride and you obliged.
If you run the company, your first move isn't asking your lawyer whether you're right. It's the whiteboard: what are they buying, and what is this costing me while it stays open? Bring the lawyers into that conversation — then let them execute against the answer, instead of setting it.
If you're an investor or sit on a board, ask what the dispute is doing to the raise, the timeline, the attention — not just to the legal scoreboard. The case can be going beautifully while the company loses the year.
The point of it all
A lawsuit is a purchase, and the other side is buying something specific: time, a discount, a story, or occasionally an actual win. Decide what they're buying before you decide how to respond. Being right is the cheapest part of the whole exercise — and the least decisive.
It's the business that has to decide whether winning, at this cost, on this timeline, is worth more than the moment you'd lose getting there.
The next time a letter lands and your blood is up, ask the only two questions that matter before you reply: what do they want, and what is this really costing us. And then what?
Read the motive, and you stay in control of your own year. Read only the merits, and you may win the case in the exact week you notice the company it was attached to has moved on without you.
This article provides general information only and is not legal advice. Specific advice should be obtained for your business and target markets.
