Intellectual Property Disputes

Intellectual property is defined by the UK government as: “something unique that you physically create”.

This can include:

• the name of your brand or products
• your inventions
• the design of your products
• anything you write, make or produce.

As a business owner, it is your responsibility to identify any infringements to your IP and take action as soon as you are aware of any problems.

Applying for IP protection makes it easier to take legal action against anyone infringing it. 

It’s advisable to keep a record of all assets you class as your intellectual property and take action to officially protect them if required.

If you are starting a new business, intellectual property disputes can arise from the very outset if you haven’t done your research. Make sure no-one else is using the same brand name or has a patent on the same kind of product. 

Gaining expert assistance to help you file for protection will help ensure that you don’t infringe anyone else’s IP, while simultaneously not restricting the scope of your own

Some types of protection are automatic, while you must apply for others.

Automatic protection:

• copyright – applies to writing, literary works, art, photography, film, TV, music, web content, and sound recordings
• design right – applies to the shape of objects.

Protection you need to apply for:

• trademark – applies to product names, logos and jingles.
• registered design – applies to the appearance of a product including shape, packaging, patterns, colours and decoration.
• patent – applies to inventions and products such as machines, machine parts, tools and medicines

Your intellectual property has been infringed when another business:

• uses, sells or imports your patented product
• uses all/some of your copyrighted work without permission
• makes, offers or sells your registered design 
• uses a trademark that’s identical or very similar to one you’ve registered
• suggests that their products/services are those of the actual provider (‘passing off’).

IP infringements can also be committed by your own employees – and you need to be aware that you could be responsible if this occurs. It is therefore crucial that you make sure your staff understand the implications of using, plagiarising or exploiting someone else’s work. 

Some examples of intellectual property infringements include:

Trademark Infringements

A trademark infringement occurs when another party uses your registered trademark in the course of their trade without permission or consent.

Your trademark is the representation of your company’s brand and reputation so infringements of this kind of IP can be very dangerous and could lead to a loss of trust from your customers.  

Copyright Infringements

A copyright infringement occurs when another party uses any unique content that you have created without your express consent.

Your copyrighted content – such as writing, literary works, art, photography, film, TV, music, web content, or sound recordings – may be extremely valuable, so enforcing the copyright, selling it or licensing it could be very lucrative. 

Patent Infringements

A patent infringement occurs when another party does any of the acts listed in the Patents Act 1977 (including making, using or selling an invention or product) without the permission of the patent owner. 

Protecting your patented products will guarantee the ongoing success of your business and prevent anyone else profiting from your invention.

Design Rights and Registered Design Infringements

A design right/registered design infringement occurs when another party copies the appearance of your product including shape, packaging, patterns, colours and decoration.

Design rights apply to the shape of your product only. You will need to apply for a registered design to protect any additional elements of your design. 

Domain Name Infringements

A domain name infringement occurs when another party is using the name of your product or business as part of its domain name.

This often occurs in order to redirect traffic to a competitor. 

These kinds of disputes are becoming increasingly prevalent in an ever more online business landscape. 

Trade Secrets Infringements

A trade secret infringement occurs when someone shares with a competitor information that gives your company a competitive advantage – such as information on a process, method, invention or formula that is not otherwise protected.

Action can be taken under common law for breach of confidence or breach of contract where a non-disclosure agreement (NDA) is in place. 

Criminal Intellectual Property Infringements

The infringement of any intellectual property is generally considered a civil law matter. It would be enforced by Trading Standards.

However, the deliberate infringement of protected IP can also be a criminal offence – counterfeiting, piracy or IP crime. 

It is paramount that you seek early legal advice from a specialist solicitor as soon as you are aware that someone has infringed your intellectual property rights, or if you may be infringing upon someone else’s. 

If you have inadvertently infringed another company’s IP rights, it’s important to take a pragmatic approach. If it is a very large, well-established company, it may be wiser to stop using that IP rather than getting involved in a high-value dispute. 

There are several possible solutions to remedy an IP infringement, both in and out of court. They include:

• drawing attention to the infringement – this may be sufficient to get the other party to stop
• destruction of the infringing materials
• taking out an injunction to prevent further infringement
• compensation based either on the loss suffered by the owner of the IP or the profits made by the infringer
• imposing sanctions such as fines, asset seizures or imprisonment if the infringer does not cease using your IP.

We will always aim to use alternative dispute resolution to achieve a settlement out of court. But if the circumstances dictate, we will take cases to trial to ensure the best possible resolution for you.

In some cases, you may wish to allow your intellectual property to be used by another party – and it could earn you some serious money.

You may wish to sell or license your IP to a third party if it will be financially beneficial.

Equally, if your business is merging with another or you are acquiring another business, it’s vital you ensure you are also purchasing all the IP rights of that business.

We can help you with the drafting of assignment, licence or mortgage documentation. We can also help you with the ongoing management of your IP portfolio and to register UK and EU trademarks.