Phone: +61 3 9819 3808
Level 27, 101 Collins Street
Melbourne Victoria 3000
Intellectual property enforcement and disputes
Commercially savvy advice is critical when intellectual property rights are in dispute. Whether you are considering enforcing your IP or are faced with a threatening letter, good advice can make the difference between a speedy, cost-efficient resolution and a protracted dispute.
Enforce your intellectual property rights.
A strong IP position can be of great deterrent value. When your competitors see patent, design or trade mark numbers on a product and choose not to compete, your IP has done good work for you and it costs you nothing more. On the other hand, sometimes you need to enforce your rights.
At this stage, good advice and careful communication with the infringer can lead to an expeditious outcome and avoid the pitfalls.
It is important to consider taking action when you become aware of an infringement. If you delay or fail to take decisive action over infringement of your intellectual property rights, not only will it dilute the value of your IP portfolio, it can also adversely prejudice any future enforcement action and permit an infringer to acquire rights it might otherwise not have.
See also patent infringement.
Defend your business from infringement claims by others.
As with enforcing your intellectual property rights, a robust defence against an infringement claim will minimise any disruption to trade, financial cost and damage to your business's reputation.
It is vital to respond quickly to allegations of trade mark, design or patent infringement. You should seek advice as soon as possible to allow you to gain a rapid understanding of the issues, risks and potential outcomes.
The cost of defending an infringement action depends on a wide range of factors. If you would like to know more about the cost of defending an infringement claim, contact us.
Good advice is critical.
Good advice is critical before responding to an apparent infringement. It is important to ensure that the apparently infringed intellectual property right is enforceable against the infringer before making any communication that might be construed as a threat. Making unjustified threats is an offence punishable by the payment of damages.
A skilful initial approach to an infringer can make all the difference between efficiently reaching a satisfactory settlement and a protracted dispute. A wide range of factors needs to be considered, from the legal technicalities and ensuring these are accurately set out in the correspondence, to the nuances of the surrounding commercial considerations.
When others threaten you, it is important to carefully consider whether the threat is legally well-founded and the commercial risks. This assessment informs the appropriate response. If the threat is without basis, an assertive response may be appropriate to promptly bring the matter to an end. On the other hand, if the threat is well-founded, a prompt strategic retreat may well dramatically reduce the costs to your business.
The resolution should be documented.
A well-written settlement agreement at the end of a dispute is critical to avoid further dispute. The agreement should be written by a specialist intellectual property lawyer to ensure that it has the intended effect. Drafting intellectual property agreements presents specific challenges other lawyers are unlikely to be familiar with. It is important to define the intellectual property covered (e.g. it is important to clearly define the products or brands covered by the agreement). This may require the input of a patent attorney. Patent agreements are subject to special rules not applicable to other contracts.
Our IP dispute management services.
A robust and vigorous enforcement of and defence against infringement claims requires a practical, commercially-focused approach along with a keen understanding of IP law, IP rights and strategic considerations.
- advise on IP infringement claims and enforcement options
- prepare cease and desist letters and issue pre-litigation demands
- provide expert assistance in court litigation and alternative dispute resolution processes such as mediation and arbitration
- advise on the validity and enforceability of third party rights and the availability of any defences to infringement
- investigate infringement claims and collect evidence prior to litigation
- negotiate and assist in documenting commercial settlement terms for disputes.
If your intellectual property has been infringed or you have been notified of infringing another party's IP, don't delay - contact us today.