Infringement of IP

4. Prevent infringing products entering Australia

If you know of products entering Australia that infringe your trademark or copyright, you can ask Australian Customs to seize the infringing products and stop them entering Australia.

5. Deter misuse

If you have a reputation for enforcing your intellectual property rights, it may deter infringers. Conversely, if you have a reputation for not enforcing your intellectual property rights, it may encourage infringers. On this note, having intellectual property rights in the first place often deters infringers.


What are my options if I infringed on someone else’s IP rights?


1. Get legal advice

We recommend that you seek advice from an IP professional to understand whether or not you are infringing on another IP right, what courses of action are open to you, and the cost and likelihood of success of each action.

2. Stop the infringing conduct

If possible, you should immediately stop any conduct that is alleged to be infringing. This is not an admission of guilt in itself. It simply gives you the opportunity to obtain legal advice to confirm whether or not you have a right to continue.

By stopping the conduct, you will remove the major impetus for the owner of the IP rights to commence legal action. It will make it more difficult for them to obtain an interim injunction. It will also prevent you from creating further infringements that could be the subject of a claim for damages.

3. Responding to an empty threat

In some cases, threats of infringement may be baseless. This could be because the IP rights do not exist, or infringement cannot be proved. Such threats clearly cannot result in successful infringement action. Unjustified claims of IP infringement are legally prohibited and may cause the person issuing the threat to be liable to compensate you for the consequences of making the threat.

4. Options depending on the type of IP

a. Copyrights

You may be infringing on someone else’s copyright if you copy, alter, or use their work. Contrary to common belief, there is no 10% rule to avoid copyright infringement. The legal test is whether you are reproducing a substantial part of the original work.

b. Patents

A patent can protect a device, substance, method or process that is new and inventive. If you’re manufacturing something that is similar to an existing product, it’s a good idea to conduct a Freedom to Operate Search and seek the assistance of a patent attorney when comparing your invention to an existing product.

c. Designs

Design registration protects the visual appearance of a product, rather than the way it works. It’s a good idea to check the IP Australia Design Register first if you believe you could be breaching someone’s intellectual property.

d. Trade Marks

If your new business sign seems strikingly similar to someone else’s, it’s a good idea to check the Trade Mark Register. Please note, some trade marks are not registered but the owners still have rights under common law.

Contact us today if you require any assistance with IP infringement, or check out our case study about IP Infringement.

(c) Progressive Legal Pty Ltd – All legal rights reserved (2019)