Dispute Resolution and Intellectual Property Enforcement

Despite your best efforts, intellectual property disputes may unfortunately arise, including situations where your company’s intellectual property is infringed by third parties, or where third parties allege that your company has infringed their intellectual property rights.

Both scenarios may result in legal proceedings, demands to cease the use of intellectual property assets, and/or claims for monetary damages.

Arbitration

In arbitration proceedings, all parties agree to submit their dispute to one or more arbitrators, who will render a binding decision.

Arbitration proceedings are confidential and less formal than court litigation. Compared with judgments issued by domestic courts, arbitral awards for damages are generally easier to enforce internationally.

Intellectual Property Enforcement: Who Should You Turn To?

The responsibility for enforcing intellectual property rights lies with the rights holder. In other words, as the owner of intellectual property rights, you are responsible for identifying infringements of your company’s intellectual property and deciding what actions to take.

Governments are responsible for establishing institutions that facilitate the enforcement of intellectual property rights. Judicial authorities and, in some countries, administrative bodies (such as intellectual property offices or customs authorities) are among the government entities that may handle infringement cases.

Where a country has adopted measures to prevent the importation of counterfeit or pirated goods, customs authorities play a key role. If you are aware that infringing goods are being imported into your country, you may request the customs authorities to detain such goods. Customs authorities may act at the request of the rights holder or in execution of a court order. In some countries, customs authorities may also act on their own initiative. In addition, in certain jurisdictions, industry associations assist their members in enforcing intellectual property rights.

Cease and Desist Letter

Generally, if someone infringes your intellectual property, the first step is to send a cease and desist letter to the alleged infringer. The letter notifies them that there may be a conflict between your intellectual property rights and their business activities (specifying the exact areas of conflict) and proposes negotiating a feasible solution.

If the infringement is unintentional, this approach is usually effective. In most cases, the infringer will either stop the infringing activity or agree to negotiate a licensing agreement.

Alternative Dispute Resolution

Intellectual property litigation is often costly, and small companies are rarely willing to pursue this route, whether as plaintiffs or defendants. Alternative dispute resolution mechanisms, such as arbitration and mediation, offer out-of-court solutions for resolving disputes.

Mediation

In mediation proceedings, a neutral intermediary (the mediator) assists the parties in negotiating a mutually acceptable resolution. Any settlement reached by the parties is documented in an enforceable agreement.

One advantage of mediation is that the parties retain control over the dispute resolution process, which can help preserve business relationships with the other parties.

Intellectual Property Enforcement: What Should You Do If Your Rights Are Infringed?

If you suspect that your company’s intellectual property rights have been infringed, we recommend that you consult an expert. Depending on the jurisdiction, a wide range of tools may be available to enforce intellectual property rights, and the specific procedures and protected rights vary from country to country. The next step is to determine whether the infringement is  intentional or unintentional.

Litigation

If the infringement persists, you may seek the assistance of enforcement authorities and initiate legal proceedings. Laws in various countries provide a range of remedies to protect intellectual property rights. For example, as a provisional measure, a court may order the preservation of evidence related to the alleged infringement. Once the infringement is established, the court can order the infringer to cease the infringing activities and pay damages. In addition, infringing products may be seized and destroyed to prevent them from entering commercial channels. In many countries, infringers may also be required to provide information about third parties involved in the production or sale of the infringing goods, as well as distribution channels.