Intellectual property violation (often also referred to as “infringement”) occurs when a company’s intellectual property is used by another entity without permission.
Intellectual property violations and their consequences can range in severity - whether you are a victim or the perpetrator.
This page provides an overview of everything you need to know about intellectual property violations and provides an overview of how we help businesses address them.
Need help with an intellectual property violation? Speak to an IP specialist today to find out how we can help with your issue.
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Intellectual property violations we can assist with
Below is a list of the different kinds of intellectual property violations which we have experience and expertise assisting with.
Whether you are the victim or the alleged perpetrator - we can help you minimize the impact of IP violation on your business.
- Trademark infringement
- Copyright infringement
- Patent infringement
- Design right infringement
- Passing off
- Interim injunctions
- Data protection and data loss
- Brand disputes
- Domain name disputes
- Breach of confidential information
- Breach of contract as it relates to IP
- Trade secrets disputes
- Licensing and franchising disputes
If you need assistance with any of these, contact the team by clicking the button below.
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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:
- Trade secrets
- Confidential information
- Contractual terms relating to intellectual property
- Commercial arrangements with 3rd parties
- Database rights
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.
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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.
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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
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.
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.
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.
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Avoid violating others’ intellectual property
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.
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.
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.
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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.
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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.
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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.
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Your Success is our Success
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.
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