IP Infringement: What Actions Should You Take?

Author: Ian Aldridge, Progressive Legal

Welcome to Progressive Legal, your specialist IP law firm and trusted partner in navigating intellectual property (IP) rights in Australia. In today’s fast-paced business environment, protecting your intellectual assets is more crucial than ever.

On this page, we’ll delve into the world of IP infringement, shedding light on its nuances and providing valuable insights for both businesses facing infringement issues and those seeking to ensure they are not inadvertently infringing on others’ rights.

What is IP infringement?

IP infringement occurs when someone violates the exclusive rights attached to intellectual property without the owner’s permission. Intellectual property encompasses various creations of the mind, such as inventions, literary and artistic works, designs, symbols, names, and images used in commerce.

Types of intellectual property and common infringement scenarios

Australia recognises several forms of intellectual property, each with its distinct set of rights and protections. The main categories include:

Trademarks

These protect distinctive signs used in commerce to identify and distinguish goods or services. Infringement may occur when a similar mark is used for similar goods or services, leading to confusion among consumers.

Copyright

Protecting original literary, artistic, and musical works, copyright infringement arises when someone reproduces, distributes, or displays copyrighted material without permission.

Patents

Granted for new and inventive inventions, patents offer exclusive rights to use, make, and sell the invention. Infringement occurs when someone utilises the patented invention without authorisation.

Designs

This covers the appearance of a product, including its shape, configuration, pattern, and ornamentation. Infringement arises when a similar design is used without permission.

Trade Secrets

While not registered, trade secrets refer to confidential business information that provides a competitive advantage. Infringement occurs when this information is misappropriated.

Understanding the Australian legal framework is crucial for navigating IP infringement issues. Australia has a robust intellectual property system governed by legislation such as the Trade Marks Act 1995, Copyright Act 1968, Patents Act 1990, and Designs Act 2003. Being familiar with these laws is essential for both protecting and enforcing your IP rights.

For detailed and specialised advice regarding a specific type of intellectual property, reach out to our experienced IP lawyers by requesting our advice below. Our lawyers have a deep understanding of the intricacies in laws surrounding all types of IP.

What are my options if someone is infringing on my intellectual property rights?

1. Cease and desist letter

A well-drafted cease and desist letter is often the first step in resolving IP infringement disputes. It formally demands the infringing party stop the unauthorised use of your IP.

2. Stop an infringer

If you know that your IP rights are being infringed, you can seek a court order to stop the infringer using your intellectual property rights. This type of court order is called an injunction.

3. Seek compensation

If your IP has been infringed, you can seek a court order to be financially compensated by the infringer. This type of court order refers to paying damages.

4. Protect your reputation

If your trademark has a reputation in the marketplace, the misuse of the trademark may impact negatively upon that reputation. You may want to stop that misuse by seeking an injunction.

5. Prevent infringing products entering Australia

If you know of products entering Australia that infringe your trademark or copyright, you can ask Australian Customs to seize the infringing products and stop them entering Australia.

6. Deter misuse

If you have a reputation for enforcing your intellectual property rights, it may deter infringers. Conversely, if you have a reputation for not enforcing your intellectual property rights, it may encourage infringers. On this note, having intellectual property rights in the first place often deters infringers.

What are my options if I infringed on someone else’s IP rights?

1. Get legal advice

We recommend that you seek advice from an IP professional to understand whether or not you are infringing on another IP right, what courses of action are open to you, and the cost and likelihood of success of each action.

2. Stop the infringing conduct

If possible, you should immediately stop any conduct that is alleged to be infringing. This is not an admission of guilt in itself. It simply gives you the opportunity to obtain legal advice to confirm whether or not you have a right to continue.

By stopping the conduct, you will remove the major impetus for the owner of the IP rights to commence legal action. It will make it more difficult for them to obtain an interim injunction. It will also prevent you from creating further infringements that could be the subject of a claim for damages.

3. Responding to an empty threat

In some cases, threats of infringement may be baseless. This could be because the IP rights do not exist, or infringement cannot be proved. Such threats clearly cannot result in successful infringement action. Unjustified claims of IP infringement are legally prohibited and may cause the person issuing the threat to be liable to compensate you for the consequences of making the threat.

4. Options depending on the type of IP

Copyrights

You may be infringing on someone else’s copyright if you copy, alter, or use their work. Contrary to common belief, there is no 10% rule to avoid copyright infringement. The legal test is whether you are reproducing a substantial part of the original work.

Patents

A patent can protect a device, substance, method or process that is new and inventive. If you’re manufacturing something that is similar to an existing product, it’s a good idea to conduct a Freedom to Operate Search and seek the assistance of a patent attorney when comparing your invention to an existing product.

Designs

Design registration protects the visual appearance of a product, rather than the way it works. It’s a good idea to check the IP Australia Design Register first if you believe you could be breaching someone’s intellectual property.

Trade Marks

If your new business sign seems strikingly similar to someone else’s, it’s a good idea to check the Trade Mark Register. Please note, some trade marks are not registered but the owners still have rights under common law.

Avoiding IP infringement: a proactive approach

Prevention is the best cure. For businesses aiming to avoid unintentional IP infringement, consider the following proactive measures:

Comprehensive IP audit

Regularly assess your IP portfolio to ensure it aligns with your business activities and goals. Identify any potential conflicts and address

Clearance searches

Before launching a new product, service, or brand, conduct thorough searches to ensure there are no existing conflicting trademarks or patents.

Educate your team

Provide training to your employees about the importance of respecting IP rights and avoiding infringement. Establish clear policies and procedures to safeguard against unintentional violations.

Monitor the market

Stay vigilant in monitoring the market for potential infringements. Utilise technology and legal expertise to detect and address unauthorised use of your IP.

Key takeaways

Intellectual property is a cornerstone of innovation and success. Whether you are dealing with IP infringement or aiming to safeguard your creations, Progressive Legal is here to guide you through the complexities of Australian IP law.

Our expert IP lawyers combine legal acumen with a commitment to providing practical, business-focused solutions. Contact us today to ensure your intellectual assets are protected. Remember, knowledge is power, and at Progressive Legal, we empower you to secure and defend what is rightfully yours.

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