IP & Related Litigation

Yes, in many circumstances, you may have contractual or common law rights to take legal action to protect your brand, even if you don’t have a registered trade mark. For example, if a competitor starts copying your unregistered trade mark, you may have an action against them for misleading or deceptive conduct in terms of the Australian Consumer Law.

Court proceedings are costly and may take years to finalise. Fortunately, there are cost-effective alternatives to litigation to recover a domain name, such as through the alternative dispute resolution mechanism under the au Dispute Resolution Policy (auDRP) (for .au domains) or the Uniform Dispute Resolution Policy (UDRP) (for .com domains). This is a cost-effective and relatively quick administrative process that can resolve disputes between the registrant of a domain name and a party with competing rights.

Taking legal action overseas can be extremely costly and complex, making it impractical for most businesses. Level Up Legal can assist you to enforce your intellectual property rights even when the perpetrator is overseas, in a number of ways. 

 

We can send the offender a cease and desist letter. If they ignore that, one of the most effective ways to deal with online infringement by an overseas party is to notify any relevant e-commerce website or social media platform that one of their members is infringing your intellectual property rights. Most online platforms have an intellectual property policy that allows them to take down content infringing a third party’s rights.

You can also file a Notice of Objection with the Australian Border Force that allows them to seize imported goods that infringe copyright or trade marks.

If someone infringes your Intellectual Property rights, you have the right to commence legal action in the Federal Court, and you may be entitled to a number of remedies. Firstly, the most important order you will want to get is an injunction that stops the infringer from continuing to infringe your IP. 

 

If you have lost business, or otherwise suffered financial harm, you can ask for damages from the infringer, often the amount that you would have been able to charge for the use of your work, for example through a licensing fee. If the infringement is particularly “flagrant”, you can also ask for additional damages. As an alternative to damages, you can ask the court to order the infringer to pay you any profits they have made from using your work.

You will usually find out that you are being accused of infringing someone else’s IP via a letter of demand or cease and desist letter. Whatever you do, don’t ignore it and hope it will go away. This is because sometimes, the amount of damages you are liable for can be influenced by your conduct after you receive the demand. You’ll want to start by taking the following three steps.

 

1. Get legal advice to understand whether or not you are in fact infringing someone else’s intellectual property.
2. Depending on the legal advice you receive, you may want to stop any further allegedly infringing conduct.
3. Get your lawyer to respond to the letter of demand. Often it is possible to avoid litigation altogether by negotiating a commercially reasonable settlement with the other party.