What is IP Infringement?
Intellectual property infringement occurs when the right to a type of intellectual property is violated/breached by another. Certain rights are enjoyed as an intellectual property right holder, and the enjoyment of these rights without the permission [license] of the right holder will constitute an infringement.
There are numerous ways you can infringe upon IP rights. This largely depends on the type of IP protection you enjoy. However, the approach to all infringement cases is the same.
Like in every conflict situation, there are always two sides, which is no different regarding IP infringement. In this case, there are two parties, namely;
- The right holder
- The infringer
We will examine how the two parties can handle an intellectual property infringement matter.
How to Handle IP Infringement [Right Holder]
For the right holder, when an infringement is discovered, there are three essential facts to establish:
- Determine the infringement.
- Assess and investigate the extent of the violation.
- Who is the infringer?
After establishing these, the following vital action is to bring this to the notice of the infringer. How can you do this? Send the infringer a “Cease and Desist Letter.
A “Cease and Desist” letter is a formal cautionary notice to a party, written by an attorney on behalf of an individual or company, demanding an immediate stop and abstinence from an alleged infringement that is detrimental or harmful to such individual or company.
The Cease and Desist Letter can serve as evidence of the knowledge of the infringement should the matter proceed to a legal hearing in court.
How to Handle IP Infringement [Infringer]
Do not panic. This is as important as the actionable steps you will take.
Receiving a Cease and Desist Letter from an attorney alleging an infringement can be very frustrating, especially if there is an element of truth somewhere in the allegation.
On this side, there are also three crucial facts to establish:
- Probe the allegation (Was there an infringement?)
- Assess the extent of the infringement; if there is one,
- Investigate and determine whether the alleging party is within their right to claim rights to the IP in question.
The outcome after establishing the facts above can vary. It can be a situation where you have not infringed on any IP rights, it can be the opposite of this, or it could be a situation where the alleging party has no right to the IP in question.
Whatever the outcome is, responding is paramount. If there is an apparent infringement, the best thing to do is comply and stop whatever you are doing that constitutes that infringement. However, if the matter is otherwise, you should seek legal advice on how best to approach the situation. Consulting with an attorney can help you work out the best response strategy.
At the end of the day, whatever side of the fence you find yourself on, think through the situation as calmly as possible to decipher the best course of action. Reacting without adequately assessing the problem can be detrimental to all parties involved.
Remember, you can only enjoy certain IP rights where that IP belongs to you through protecting such ownership. Speak to an IP lawyer today!