From copyrights to trademarks, we see different types of intellectual property everywhere. For an individual or business, protecting intellectual property allows them to build a unique brand and benefit from their innovations.
Intellectual property such as trademarks doesn’t become valuable overnight. A business may spend years pouring hard work into growing and popularising a symbol, logo or catchphrase. So when someone copies your trademark or any other intellectual property, you can’t sit back and let them make money off your innovation.
It’s important to note that intellectual property infringement is not as common as you might think. However, if someone is misusing your trademark, patent or any other intellectual property, here is what you can do.
Confirm You Own the IP
You can’t claim infringement if you are not the rightful owner of the intellectual property. In countries like Australia, you can protect trademarks, patents and designs by registering them. On the other hand, copyrights don’t need registration. In fact, there’s not even a legal requirement to publish the material or put a copyright notice on it. Similarly, you need to confirm that you own the IP in a specific country because IP laws vary from country to country.
As far as trademarks are concerned, you may have registered a trademark but failed to use it for three years. This implies that anyone can apply for its removal for non-use. Therefore, even though you registered the trademark, you may end up losing it to a competitor.
You Are Responsible for Enforcing IP
If someone is wrongfully using your intellectual property, there is no official organisation that will police your IP on your behalf. You are responsible for identifying infringement and enforcing IP.
Establish Infringement
Before you take any action, it’s important to establish that someone has actually infringed your intellectual property. You need to confirm that the infringer has commercially benefited from infringing your intellectual property.
Make sure your business partner or any other person from your organisation has not authorised the alleged infringer to use your IP. Moreover, a party can use your IP without permission if it falls within the “fair dealing” exceptions under Australia’s Copyright Act 1968 (Commonwealth).
Falsely claiming IP infringement can backfire for your organisation. It may expose you to a defamation suit or other penalties.
Get in Touch with the Infringer
It’s possible that the infringer never intended to copy your intellectual property or did so accidentally. You should reach out to them and make them aware of the infringement. Asking them to stop infringing your IP may be all you need to do.
However, if they are refusing to cooperate and continue using the IP, you should seek legal counsel.
Involve IP Lawyers
Once you have confirmed IP ownership and infringement, it would be best to involve an experienced IP lawyer. A lawyer can guide you through different resolution options, from cease and desist to litigation. Consult EAGLEGATE Lawyers to learn more.
Send a Cease & Desist Letter
If your informal communication with the infringer has been unsuccessful, then your lawyer may suggest sending a cease and desist letter. This document serves as a warning sign to the infringer, requesting them to stop infringement or they will face legal action.
If the infringer ignores your cease and desist letter and continues wrongfully using your IP, you may be left with no choice but to sue them. However, litigation can be costly and time-consuming. It should be left as a last resort to regain control over your valuable intellectual property.
The Bottom Line
Maintaining and protecting intellectual property can be tricky. If your IP is being infringed, it’s imperative that you take immediate action and get a knowledgeable attorney on board.
Author Name: Nicole Murdoch
Author Bio: An award-winning intellectual property lawyer, Nicole Murdoch is the Founding Director of Eaglegate and has been advising the world’s largest mining, software and food production companies on IP asset management, compliance and audits. She is a member of the Queensland Law Society Cyber Security working group and a registered Australian Trade Marks Attorney with over 15 years of experience in the industry.
