What to do if someone infringes your intellectual property

Infringement of IP is becoming more and more commonplace

Businesses of all stripes need to be increasingly aware of their options, if they find their intangible assets are being misappropriated.

If someone infringes on your intellectual property (IP), taking swift and informed action is crucial to protect your business and rights. In this article, we’ll guide you through the key steps to take when your IP is being used without permission.

How to confirm IP infringement

Before acting, confirm that your intellectual property has been infringed. Common signs include:

Patent infringement: If someone else manufactures, uses, or sells your patented invention without permission.
Trade mark infringement: When another business uses a similar name or logo to your registered trade mark, without permission, in a way that could confuse consumers.
Copyright infringement: If someone reproduces, distributes, or publicly displays your original work (e.g. images, audio, video, written works) without permission.

There are a number of defences to infringement that you will need to be aware of before you make a claim of infringement. As such, it is best to collect as much evidence of the alleged copying as possible and review this with intellectual property specialists before taking any action.

(Notably, certain IP law means that should a threat of enforcement be made incorrectly in certain scenarios, this can backfire on the claimant - resulting in a counterclaim. As such, it's vital to make sure that you take the next steps carefully.)

What evidence do you need?

Gathering evidence of infringement is vital for taking action. It is advised that you do so before alerting the alleged infringer of your suspicions, as they may remove evidence of infringement when notified. This will make it harder for you to enforce your claim, or ascertain the extent to which it could be considered damaging to your business.

Some examples include:

Screenshots or photographs of the infringing product or content.
Sales records or marketing materials showing the infringement.
Communications with the infringer, if any.

It can be advantageous to collect as much evidence of infringement before contacting an IP specialist to then look to enforce the claim, as this will reduce the amount of time required on the part of the legal team in gathering the evidence on your behalf.

Crucially, evidence will need to be substantial enough to prove the point of infringement from the legal point of view for it to be correctly enforced. As such, this phase of gathering evidence and developing an enforcement claim is critical in achieving the ideal outcome for your business.

Note that IP specialists with the experience of dealing with infringement claims on a day-to-day basis are best placed in ascertaining the strength of your claim - both in terms of their objective distance from the infringement, as well as their expertise in ascertaining the legal strength of your claim. So they will also be best placed in determining what your legal recourse is, and what you can seek by way of damages in the next step.

What is a cease and desist letter?

A cease and desist letter is an official request for the infringing party to stop using your intellectual property.

Within legal parlence these constitute a letter before action - in essence requesting a set of actions and remedies from the alleged infringing party before the claim is sought to be legally enforced by way of litigation.

As above, these are best composed of a complete set of evidence, accurate specification of the legal claim of infringement being made, as well as an outline of remedies.

In its most basic form the cease and desist letter should:

Identify the infringed IP and provide evidence of your ownership.
Request that they cease their infringing activities within a specific timeframe.
Outline potential legal consequences if the infringement continues.

A cease and desist letter often resolves the issue quickly and without the need for litigation. At Virtuoso Legal, we are capable of often resolving infringement issues at this stage, as a consequence of a detailed and comprehensive approach to the letter before action. Again it is critical, both from an enforcement and remedy standpoint that this is carefully and accurately composed.

Should you consider alternative dispute resolution (ADR)?

Alternative dispute resolution (ADR), such as mediation or arbitration, can be a more cost-effective and faster way to resolve IP disputes without going to court. ADR allows both parties to negotiate and settle the matter confidentially. These methods often come into play where there is some potential middle ground between the alleged infringer and claimant - and can even result in mutually beneficial outcomes (e.g. the infringer becoming a royalty paying licensee of the IP that was infringed, alongside other settled outcomes). Two common types of ADR include:

Mediation is where a neutral third party helps you settle.
Arbitration is where an impartial third party makes a binding decision.

As above, in such circumstances, this can be far more beneficial to resolve the issue without legal enforcement via court action, your IP specialist will be able to advise you as to the best course of action, in order to achieve the best commercial outcome for your business.

Need help registering or enforcing your IP? Contact our team.

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When should you take legal action?

If informal methods like cease and desist letters or ADR don’t work, you may need to take legal action. Options include:

Court proceedings: You can take the infringer to court to seek an injunction or claim damages. The Intellectual Property Enterprise Court (IPEC) or the High Court are the usual venues for IP cases in the UK.
Injunctions: A court can issue an injunction to prevent further infringement, making it an essential tool in IP protection. Note that should an injunction be granted, and then you lose the case for infringement, that a counterclaim would be likely for lost business on behalf of the Defendant during the period that they were injuncted.
Seeking damages: In some cases, you can also claim financial compensation for losses suffered due to the infringement. Monetary awards for damages can vary on the type of infringement case. Your IP specialist will be able to ascertain the best approach to maximise the recovery of lost revenue through specific legal recourse.

How to protect your IP rights going forward

If you’ve been a victim of IP infringement, consider strengthening your future protection strategies:

Register your IP: While certain rights like copyright are automatic, registering trade marks and patents provides stronger enforcement options.
Monitor your IP: Use services to monitor for IP misuse and detect infringement early.
Use contracts and NDAs: Ensure employees, contractors, and business partners sign non-disclosure agreements (NDAs) and IP assignments to prevent the misuse of your ideas.

Need help protecting your IP? Contact our team.

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Frequently asked questions about IP infringement

How can I stop someone from using my content online?
You can file a Digital Millennium Copyright Act (DMCA) takedown notice to remove infringing content from online platforms. Alternatively, contacting the platform directly might result in quicker action.

What if the infringer is in another country?
International IP enforcement can be challenging, but tools like the Madrid Protocol for trade marks and the Patent Cooperation Treaty (PCT) help extend your IP protection across borders.

In all instances of IP enforcement, it is recommended that you instruct IP specialists to assist you in your claim, to not only ensure that your enforcement is as precise as possible, but also to achieve the most preferable outcome for your business.

Need help registering or enforcing your IP? Contact our team.

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Conclusion: Taking action against IP infringement

When someone infringes on your intellectual property, taking swift action can help prevent further damage. Start with cease and desist letters, consider ADR, and escalate to legal action if needed. With proper monitoring and IP registration, you can better protect your rights in the future. For expert advice on handling IP infringement, contact Virtuoso Legal.

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What to do if someone infringes your intellectual property

Infringement of IP is becoming more and more commonplace

Businesses of all stripes need to be increasingly aware of their options, if they find their intangible assets are being misappropriated.

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