Intellectual Property Claims are on the Rise: mitigating the risks to your business

22 March, 2018

 

Copyright sign and judge's hammer

The number of claims heard by the specialist Intellectual Property court in England and Wales (IPEC) hit a record high last year. This correlates with an increased understanding of IP rights generally; with more accessible guidance online, individuals and businesses perhaps feel more confident enforcing their IP rights.

In light of this, it is good practice for business owners to consider establishing an effective strategy for dealing with such disputes.

Dispute Resolution Outside of Court       

Court proceedings can be an effective method of IP rights enforcement, however it’s important to note that with litigation comes risk, and court is not always the best place to resolve disputes. For example:

  • It’s possible to tackle cybersquatting through the UDRP process, seeking the cancellation and/or surrender of a domain name registered in bad faith;
  • The take-down of a website displaying stolen content (infringing Copyright) can be sought through a Notice and Takedown procedure, at a pre-issue stage; and
  • Alternative Dispute Resolution (ADR) can provide a faster route to resolution, through for example Mediation, saving time and costs.

 

Dispute Resolution in Court

If, despite the above, you still wish to resolve the dispute in court, doing so is a serious step, exposing you to a potentially significant costs risk. It’s important to be aware:

  • The value of the claim does not necessarily correlate with its legal complexity and even a Small Claim can still be a tricky claim to prove. There are common misconceptions with regard to the ownership of IP rights which can catch out the unwary, particularly with regard to Copyright;
  • Once a claim is issued, you cannot discontinue without potentially being held liable for the other side’s legal costs;
  • It can also be difficult or impossible to amend a claim once it’s issued, so you should begin with carefully drafted Particulars of Claim at the outset;
  • Claims can typically take 18 to 24 months (or more) to reach trial, so it’s important to understand the strengths and also weaknesses of a claim early on, preventing nasty surprises at trial a year or 2 down the line; and
  • If a claim is misconceived and completely groundless, a Defendant could apply to strike it out, and seek an order for its costs against you.

 

Conclusion

There are options available both inside and outside of Court, and a carefully thought-out IP enforcement strategy can mitigate the risks inherent in litigation.

Therefore, if you’re considering enforcing IP rights (in court or not), it’s recommended that legal advice is sought from a solicitor specialising in IP law, even before a threat of IP infringement is made (to avoid for example, the risk of being sued yourself under the Groundless Threats provisions).

 

Further Reading

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