4 Strategies to Enforce your Intellectual Property Rights in Australia
‘Intellectual property’ (IP) is a broad term used to identify intangible rights that allow you to commercialise your creative efforts. IP rights exist in many forms - think copyright, trade marks, design rights and patents - and may be protected in a number of different ways depending on their nature.
Your suite of IP is a valuable asset. If another party uses it without your authorisation, it can damage your business and brand. Therefore, it is essential to register your IP rights, enact a plan to monitor infringement and enforce your rights where necessary. This article will provide four strategies to protect and enforce your IP rights.
Register Your IP Rights
To protect your intellectual property, it is vital to first identify and document all of your assets in a catalogue. You should also take note of any IP you use through a licence. While copyright is automatic and you do not need to register it, you should register other forms of IP, such as trade mark, patent and design rights. You will then need to renew these registrations before expiration. Expiration dates depend on the type of IP. For example, trade mark protection lasts for 10 years.
Protect Your IP
You should also undertake proactive measures to deter other parties from infringing your rights. You can use passwords or encryption to protect your IP.
Placing watermarks on your assets, such as photographs, can prevent others from infringing your copyright. Further, using copyright - © - and trade mark - ™ and ® - symbols on your assets and in your branding communicates to the public that your rights are protected.
Registering your IP is only the first step in protecting your assets. It is up to you to be vigilant, regularly monitor infringement and take action if required. Simply conducting an online search may reveal competitors and other parties who may be infringing your IP rights.
Enforce Your IP Rights
After identifying an infringement of one of your IP assets, you may be able to enforce your rights if:
- registration of your intellectual property has not expired;
- you own the rights and are not using the asset through a licence;
- your work has been wholly or substantially copied; and
- you did not provide the infringer with authority to use or copy your work.
There are a number of strategies for enforcing your rights. The best fit will depend on the type of rights being infringed and the circumstances of the infringement.
- Seize Counterfeit Goods
If an imported product infringes on your copyright or trade mark rights, you can lodge a notice of objection with the Australian Department of Immigration and Border Protection. If the Department approves your notice of objection, customs temporarily stops the importation and distribution of the goods.
You then have 10 business days to commence court proceedings to block the importation of goods permanently. If you do not begin action within the time frame, the product will become available.
- Send a Letter of Demand
If someone infringes your rights domestically, you can send them a letter of demand. The letter should:
- identify the infringement;
- outline your IP rights;
- provide an opportunity to rectify the infringement; and
- inform them of the next steps (i.e. legal action).
It is sometimes a legal or contractual requirement to issue a letter of demand prior to taking any further action. However, a letter of demand may not always be suitable, particularly where there is a risk the infringer may destroy the evidence.
- Engage in Alternative Dispute Resolution (ADR)
Depending on the nature of the breach, you may seek to resolve your dispute through ADR mechanisms as opposed to going to court. ADR has many advantages, including the ability for parties to appoint a third party who is an expert in a specific area (for example, patents) to guide the process and assist in resolving the dispute.
- Commence Litigation
Litigation can be time consuming and expensive. However, it also has advantages. For example, a court may grant you an interim injunction, stopping infringement. If you are successful in your claim, the court may:
- award you damages;
- award you a share of the infringer’s wrongful profit;
- order the destruction of all infringing material; or
- grant a final injunction.
Protecting your IP through registration is vital to protect your business and brand. However, your rights mean very little unless you are monitoring and enforcing them. There are a number of enforcement strategies at your disposal. The most appropriate will depend on the IP rights involved and the circumstances of the infringement.
If you need assistance enforcing your IP rights, contact LegalVision’s IP lawyers on 1300 544 755.