DEFENDING YOUR IP RIGHTS

Intellectual property can consist of many different areas, from logos and corporate identity through to products, services, and processes that differentiate your business offering. It’s when these ideas are used without permission that an organization can suffer.  

 Almost all businesses have undoubtedly benefited from the internet, where products, services, and marketing communications can reach vast audiences at relatively low costs – but this has also increased the chances of intellectual property theft.

Companies of all sizes are at risk of having their unique ideas, products or services infringed upon, even if they are on the other side of the world, making intellectual property protection more important than ever

When you have a great idea for a product or service, there will always be people who will want to duplicate your success and sell your ideas as their own. Depending on individual circumstances, you can use patents, trademarks or copyrights – all of which cover different areas of intellectual property. These can be used to prevent competitors or anyone else from using your ideas for their own profit without your consent. 

IP rights are territorial – protected through national or regional legislation. IP disputes may impact multiple territories: Globalization, economic integration, digitization, Jurisdiction, applicable law, enforcement and recognition of foreign judgments.

An infringement occurs when your intellectual property is used without your permission by:

  • A Competitor.
  • An Employee or Former Employee.
  • A Contractor Or Consultant That You Have Engaged, Or Previously Engaged.
  • Anyone Else.

REASONS TO CONSIDER REGISTERING YOUR IP:

  • Protect the value of your intellectual property

If anyone can use your trademark, patent, PBR, or other intellectual property rights without compensating you for that use, your intellectual property rights do not maintain value. Your intellectual property rights maintain value only for as long as the use of your intellectual property is not free.

  • Stop an infringer

If you know that your intellectual property rights are being infringed, you can seek a court order to stop the infringer using your intellectual property rights. This type of court order is called an injunction.

  • Seek compensation

If your intellectual property has been infringed, you can seek a court order to be financially compensated by the infringer. This type of court order refers to paying damages.

  • Protect your reputation

If your trademark has a reputation in the marketplace, the misuse of the trademark may impact negatively that reputation. You may want to stop that misuse by seeking an injunction.

  • Prevent infringing products from 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 from entering Australia.

  • 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.

Dispute resolution or dispute settlement is the process of resolving disputes between parties. The term dispute resolution is sometimes used interchangeably with conflict resolution, although conflicts are generally more deep-rooted and lengthy than disputes.

The following are conflict resolution options:

COURT LITIGATION

Litigation is the likely next step if the initial letters do not lead to a negotiated outcome.  Once proceedings are commenced the dispute resolution goes through the courts.

Barristers are generally appointed as they have rights of audience before the courts, and are experts in court procedure. Their involvement in a case gives litigants a far better chance of success.

Unfortunately, litigation can belong, and costly. Nevertheless, in some situations, it may well be the best approach.  Although arbitration is often referred to as an alternative form of dispute resolution, it is similar to the court process in that a third party will reach a decision about the rights and wrongs of the situation, and that decision is binding on the parties.  One significant benefit of arbitration over litigation though is that the proceedings will be confidential.

Mediation. An informal consensual process in which a neutral intermediary, the mediator, assists the parties in reaching a settlement based on the parties’ interests. While the mediator cannot impose a settlement, any settlement agreement has the force of the contract. Mediation does not preclude any subsequent court or arbitration options.

Mediation is a way of resolving disputes by appointing a neutral third-party mediator to facilitate communication between the parties, with a view to agreeing on a settlement. The courts strongly emphasize the importance of trying to resolve disputes in mediation before pursuing a claim in the courts.

In resolving or narrowing areas of disputes through mediation parties save an enormous amount of time, energy, and expense associated with protracted conflict and litigation.

Arbitration. A consensual procedure in which the parties submit their dispute to one or more arbitrators of their choice for a binding and final decision (an “award”) based on the respective rights and obligations of the parties and enforceable under arbitral law. Arbitration normally forecloses any subsequent court options.

Arbitration is often faster than litigation in court, and a time limit can be placed on the length of the process. Arbitration can be cheaper and more flexible, more commercial and less formal than court. Unlike court rulings, arbitration proceedings and arbitral awards are confidential.

The rate given is usually the rate for the full arbitration. The usual practice is for each party to pay half of the total fees and costs unless otherwise agreed to. In some cases, the person or entity who does not prevail pays the full cost of arbitration.

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