In the following sections, we will outline what IP is, how and when violations occur and how we can help.
What is intellectual property?
Intellectual property is a name given to a host of different intangible and knowledge assets that entities hold which are protected via intellectual property law.
The purpose of intellectual property law is to help individuals and businesses protect and profit from their ideas and subsequent creations – and protect themselves from their creations being unfairly used by others.
The four main types of intellectual property are:
Trademarks – these registered rights protect brands, and can include things like names, slogans, logos, colours, jingles and more
Copyright – this protects original creative works, and can include things like written works, images, music, videos, broadcasts and more. Crucially this protects the recording of the idea, and not the idea itself.
Patents – patents are a registered right that protects inventions which are proven to have made an “inventive step”. Usually, this requires a scientific or technological step, amongst other requirements.
Design rights – design rights protect designs in terms of their non-functional and aesthetic characteristics. Design rights can be registered for additional protection, though unregistered designs also enjoy some protection. It is notable that registered designs have a broader scope of protection.
Whilst these are the main types of intellectual property, it also covers things such as:
Contractual terms relating to intellectual property
Commercial arrangements with 3rd parties
For all intents and purposes, any intangible asset of notable value held within a business (and if registered where applicable) is subject to intellectual property law and protection.
Intellectual property violation and infringement
Intellectual property violations typically occur when intellectual property held by an individual or business is accessed and used by a third party without the correct authorisation or license from the intellectual property rights holder.
Intellectual property owners often grant others rights to the use of IP through licenses and franchise agreements. These kinds of agreements may set specific boundaries as to how this intellectual property may and may not be used.
Intellectual property violations thus occur when use has occurred without an agreement being in place, or when use is in contravention of existing agreements.
In certain instances, infringement or violation may not involve the use of identical intellectual property – but that which has a discernible degree of similarity.
How to avoid intellectual property violation
Whether you are concerned about infringing someone else’s intellectual property, or you are concerned that IP you produce may be at risk of being infringed - it is important to avoid intellectual property violations where possible.
An issue that many face is that intellectual property is a unique and specialist area of law, and as such, they are not aware of the boundaries of the law until they experience a negative event.
Below we outline some basic steps to avoid intellectual property violations, from both sides of a potential dispute.
Avoid violation of your intellectual property
1. Map out your intellectual property
It is important to first understand what key intellectual property is held within your business. Conducting an intellectual property audit (or instructing specialists to do so for you) is an effective way of understanding what IP you have, its value, and its risk of intellectual property violation – in the form of an intellectual property asset register.
2. Prioritise protecting key assets
Once you have an IP asset register in place, identify priorities in terms of protection and put these into place. Businesses rich in IP will do this in the form of an intellectual property strategy which systematically secures assets by order of priority. This is best done with an ongoing budget, proportionate to the contribution of the IP in relation to the revenue of the business it is held within.
3. Maintain oversight of key IP
Once protection is in place, it is important to be vigilant as it relates to any violations in order to “nip them in the bud”. Identifying and enforcing violations early limits the damage that infringements can meaningfully have on the profitability and reputation of a business. IP management. monitoring and watching services are commonplace offerings of IP specialists such as ourselves. Crucially a proactive approach saves time, attention and money – as serious claims are a significant drain on resources.
Avoid violating others’ intellectual property
1. Risk profile your interaction with others’ IP
To avoid infringing on others’ intellectual property, the first step is to become acutely aware of when you are likely to encounter and engage with it. This depends on the nature of the business that you conduct. If you are a fashion designer, it may be when you are researching others online. If you are a content creator, it may be when you are researching topics or collecting material for a piece. This activity should result in the creation of an IP risk profile – which makes it clear when there is a heightened risk of an intellectual property violation occurring. Another common example is professional trademark clearance searches which help ensure that a trademark can be registered with less risk of opposition.
2. Develop IP safeguarding procedures
With a risk profile in place as it relates to business activity and proximity to others’ IP, the next step is to develop safeguarding procedures as it relates to these instances. This may, for example, include guidelines as it relates to using copyright material (as well as an outline of where to find images that are free to use). Crucially, those activities which are routine and are found to offer a risk of IP violation should have procedures in place to ensure that risk is minimised.
3. Educate your team
Once the previous two steps have been completed it is important to educate your team. Business owners are ultimately responsible for the actions of their employees when it comes to intellectual property violations – and it is the business which suffers should one occur. Routine sessions highlighting key risks, reporting and safeguarding procedures will reduce the risk of an IP infringement occurring.
If you need assistance related to avoiding intellectual property violations, contact our team to discuss the next steps.
What are the consequences of intellectual property violations?
Most intellectual property violations fall under civil law – which in essence concern the legal arbitration of interests between businesses and individuals. Some intellectual property violations can fall under criminal law (e.g., counterfeiting) – which results in criminal sanctions and punishments.
Civil law and intellectual property law are typically restorative. What this means is that should a dispute reach trial, the judge would typically seek to restore the IP owner to the state they would have been in should the violation never have occurred. In these instances, a successfully fought claim would likely result in damages awards equal to lost revenue, and costs.
As an intellectual property law firm, we seek to resolve disputes that arise from intellectual property violations before trial to minimise the disruption that businesses encounter.
Ultimately, when an IP dispute occurs it is in each party’s best interest to resolve it as quickly and cost-effectively as possible. Engaging with intellectual property specialists, such as ourselves, is the best way to minimise the impact of a dispute arising from an IP violation.
Below we outline the process we undertake as it relates to intellectual property disputes in more detail.
My intellectual property is being violated, what should I do?
Gather evidence of alleged infringement
If you suspect that your IP is being violated, the first most important activity is to curate evidence of alleged infringement. Doing so in a systematic and rational way will help you ascertain exactly the scope and severity of the alleged infringement, prior to any claim being made.
Avoid contacting the infringing party
It is important to make sure that you do not contact the infringing party where possible. There are two reasons for this. Firstly, notifying them may result in them immediately removing any evidence of a violation, which may limit your ability to make a comprehensive claim. Secondly, in many instances of intellectual property violation, making an incorrect or inaccurate claim can result in a costly counterclaim.
Get a professional assessment
A professional assessment of the claim, as it relates to the outline given and the facts and evidence is crucial prior to contact being made. This will ensure that at the first instance a claim is made against the alleged infringer it is done so in its most comprehensive and effective way. This maximises the likelihood of a claim being effective in the first instance, as well as your ability to enforce undertakings.
I have been accused of an intellectual property violation, what should I do?
Remove any alleged infringing use of intellectual property
If you have been accused of an intellectual property violation, removal of the alleged infringing material is a key priority. The reason for this is that it minimises the amount of damage being experienced if the claimant is correct in their claim – effectively reducing your exposure to the negative consequences of the claim.
Contact professionals prior to signing undertakings
In most instances where a claim is made, the other side will state the particulars of claim and then propose a set of actions that you must undertake in order to stop further legal action from occurring. These are called undertaking and are a common part of any legal claim in the initial stages.
It is notable that the other side may not be entitled to the undertakings they request, and indeed, that a professional review of the claim may give rise to a negotiation that can reduce the burden these undertakings place on your business. A professional review of the claim will ascertain specific liability and ensure that if valid, the impact of an intellectual property violation on your business is minimised.
What is the process of dealing with an intellectual property violation?
Below is an outline of how the team at Virtuoso Legal deal with intellectual property violation claims that our clients have received.
Crucially, any intellectual property dispute can usually be resolved before a costly and time-consuming trial is required. Most disputes in which we represent our clients are resolved prior to formal legal action, via the dismissal of a claim, damage limitation or negotiation.
Have any questions? Do you need help with an intellectual property violation claim? Get in touch with our team by clicking below to speak to our team and find out how we can help you.
When we speak to you about IP litigation; it’s all about the best result for you.
It's important from day one to understand and plan for what can and can't be achieved. It’s also essential to put this into a commercial context. Not just a legal one. We’ll consider the problem in the round. Who will this affect? What message will be sent out to your team, your competitors, and your adversaries? How will litigation affect the management of your business and the cash flow?
The answers to these questions and help you put the issue into context. Winning but winning at all costs doesn't always get you where you want to be. We will always work to secure your best possible outcome.
Speak to our team today by clicking the button below.
The key to any successful legal action is the best possible plan. At the beginning of any dispute a review is undertaken to 1) gather all the facts 2) identify the best options on the table and 3) ascertain the client’s ideal outcome. In many ways, the review is the most important stage in any matter. Our specialists are best placed to make the strongest argument at this stage often solving issues before they gain traction.
Should the other side not agree to withdraw their claim or fulfil undertakings – correspondence may then occur to progress the claim. We strike a balance between accruing further legal fees to argue with belligerent opposition and seeking to conclude the claim. In each instance we endeavor to leave you in the best possible commercial position.
ADR / Settlement
Alternative Dispute Resolutions (ADRs) and settlements are agreed courses of action decided by both sides on a claim. Such agreements are expertly negotiated by our team to ensure that the outcome best suits your business goals. In such cases where binding agreements are made, it is vital to have experienced experts negotiating your position; as such agreements will determine how your business is legally bound in the future.
Where possible, Virtuoso Legal’s experts will do everything within their power to ensure that your claim is resolved before trial. However, if not possible, the Virtuoso Legal team are highly experienced in resolving litigious matters in the Intellectual Property Enterprise Court (IPEC), High Court and intellectual property offices (IPOs). In addition, we have secured results in the UK Court of Appeal and Supreme Court. Trial can be challenging, with a large amount of preparatory work being completed by our team and barristers. We present the strongest possible legal argument, minimise the impact of the litigation on your business, and achieve the best outcome for you.
“In each case, our specialist team seeks to resolve your intellectual property violation dispute as quickly and cost-effectively as possible. Our unique in-house expertise allows us to resolve issues much quicker than our competitors, before costs get out of hand.”
Elizabeth Ward, Founding Director and IP Solicitor
Ex-employees of a biotechnology giant contacted the Virtuoso Legal team when their previous employers brought a claim. Having set up their own business, the giant claimed they were using of confidential info and breaching their old contracts. We successfully stepped in to defend the ex-employees in the High Court in a highly technical David versus…
A complex case involving trade mark use, Google AdSense advertising and the domain name "argos.com". Virtuoso Legal client Argos Systems (USA) receive a High Court claim from retailer Argos (UK) relating to the domain and associated issues. Claim is defended by Virtuoso Legal, through the High Court, Court of Appeal and the Supreme Court. …
By Lauren Waterman, Trainee Solicitor involved in this case. This case concerns an appeal of a first instance decision relating to information barriers and clarifies the correct approach to be applied to “former opponent” cases. This case is now the leading authority in this regard. Cases such as this were rare, as demonstrated by the…
An ex-employee of a world food company left the company seeking to work for a competitor. Following this, the prior employer brings an interim injunction on the basis of a breach of contract and restrictive covenants. Virtuoso Legal assisted Mr. Jing Lu in defending the interim injunction, subsequently winning the case in the High Court.…
An international linguistic services company found a third-party website using its brand selling services. The team at Virtuoso Legal investigated, finding a competing company had set it up and had been siphoning business through the site. This was a cybersquatting and trade mark infringement case, resulting in a record cost and damages award. Click to…
Defending against an interim injunction brought on the basis of an allegation of design right infringement. The design in question concerned a "whisky experience tasting glass". Halting the injunction in its tracks, deploying a range of other strategies were taken to secure our client's position. This then led to a confidential settlement between the parties. …