Copyright infringement occurs when the whole or a substantial part of a copyright work is reproduced, distributed, rented of lent, publicly performed, electronically transmitted to public communication without the authorisation of the author of said copyright work. Further information and legal advice is also available via the Citizens Advice.
Similarly, for patented products, selling or importing these products without patent owner’s permission means infringing the patent. In such cases, patent owner may take legal actions and claim damages if there is an infringement issue.
Registered designs protect the intellectual property owner from third parties who may attempt to make, offer, put on the market, import or export the design that is protected already exclusively for 25 years (provided renewal fees are paid every 5 years).
Trade mark infringement happens when a third party uses an identical or similar trademark which is already a registered mark. This is usually due to the public being led to a mistaken belief because of the similarities between the marks. It is especially important to note that if the mark is not registered previously, it is not possible to claim rights against its improper usage.
What to do when accused of infringing someone’s IP rights?
There are various ways a right holder may wish to take action against infringements such as through civil courts, mediation, the use of ‘cease and desist’ letters or by seeking an arrangement to use rights owned by others. It is important to note that the infringer maybe liable for damages relating to any proven infringement.
It is strictly recommended not to ignore any infringement notifications received via letter, email, and phone call or similar. Accused party should take time to understand the allegation and validity of the document. Especially in case of patent and design infringement allegations, it is highly recommended to seek advice from IP attorney or solicitor as soon as possible.
Affordable access to justice:
- IP Mediation: Mediation is a cheaper and quicker way of resolving disputes between parties without going through court. Mediation is usually beneficial for all parties and in case of court actions, it is expected that mediation method is tried before starting legal proceedings.
- IP Pro Bono: This initiative provides IP advice and legal support for claimants and defendants in intellectual property disputes especially for those who cannot fund these actions on their own. This service is provided by IP organisations such as CIPA, CITMA, IPLA, IP Bar and the Law Society.
- Intellectual Property Enterprise Court (IPEC): IPEC deals with IP disputes to enable SMEs and individuals in accessing affordable legal advice during their proceedings in search of justice. Detailed information regarding IPEC and its services can be accesses via IPEC Court guide.
- The Copyright Tribunal: Its main purpose is to make formal judgement on disputed matters between collecting societies and users of copyright material in their business. It does not deal with copyright infringement cases or with criminal ‘piracy’ of copyright works.
- IP investigations and prosecutions: These are usually conducted by the local Trading Standards Authorities. Individuals or organisations can conduct their own private investigations and prosecutions with the guidance of Crown Prosecution Service as well. It is important to note that individuals and companies do have the right to bring private prosecution in the criminal courts. A private prosecutor is subject to the same obligations as the public prosecuting authorities and has a duty to act fairly and independently.
Risks for Businesses
Failure to address IP rights infringement problem may leave the businesses liable and at risk to civil and/or criminal action. These actions may be in form of payment of damages as well as unlimited fines, or a custodial sentence (up to 10 years). Threats also include computer viruses and malwares.
It is important to consider not only the way business is conducted but also how the staff members behave. Their actions may create liability for the whole organisation.
It is worthwhile to go through tools such as Supply Chain Toolkit or the Trading Standards Business Companion site that may help individuals and businesses to be aware of the importance and risks involved in intellectual property rights.