Enforcing Your IP
Getting IP protection means that you can ensure that the investment of resources in creating the IP can lead to economic reward and further innovation. An infringement of IP rights occurs when others unlawfully use the IPR belonging to another organization or individual. Examples of this include the unauthorized manufacturing of patented technology; the sale of counterfeit products; similar goods bearing another company's trade mark; distribution of music or film without the copyright owner's consent (pirated goods).
Obtaining IP protection can give you a competitive advantage allowing you to sell those products or services at a premium. However, having IP rights in place is meaningless unless those rights are enforced. The threat of enforcement is what allows the IP to be exploited as a commercial asset. Competitors or other third parties may still infringe on your intellectual property rights. If that happens, there are steps you can take to end the infringement.
Enforcement of IP rights is necessary in order to:
- Preserve the legal validity of your IP rights.
- Prevent infringement from occurring or continuing in the marketplace in order to avoid damage including loss of goodwill or reputation.
- Seek compensation for actual damage, e.g. loss of profit, resulting from the infringement.
The Copyright & Related Rights Act 2000, the Patents Act 1992, the Trade Marks Act 1996 and the Industrial Designs Act 2001Designs Act 2002 all contain provisions imposing civil liability for activities that constitute infringement.
Copyright and trade mark owners can take court action in response to alleged infringing activity. The courts have a wide range of civil remedies available to them to compensate aggrieved owners. These include:
- Orders to account for profits
- Orders to seize, destroy and/or hand over infringing goods to right holders.
If you are in a position where you need take steps to enforce your Intellectual Property rights, there are a number of ways, depending on the circumstances of infringement, in which you can proceed.
Should an IP right infringement occur it is suggested that alternative mechanisms to resolve disputes are explored first and that, only when this is not a viable solution, you enforce your rights through legal proceedings
An initial step, particularly in the case of Trade Mark infringement, can be the issuing of a cease and desist letter drawn up by a solicitor. Due to the threat of court action if the infringement continues, in a lot of cases, this action might be sufficient to deter the infringer.
It is always advisable to seek legal assistance to determine how best to proceed and always seek professional legal advice from a solicitor or IP professional before embarking on enforcement proceedings.
Enforcement of intellectual property (IP) rights in other countries can also be complex and require careful consideration. Enforcement actions abroad will require the legal expertise of IP professionals in that country. Irish legal and IP professionals with relevant international experience would be able to identify and instruct a suitable overseas firm to advise and provide representation.
For more information please consult the IPR Helpdesk fact sheet on defending and enforcing IP.
Defend your rights against infringements
After registering your trade mark (or any other intellectual property right (IPR)) you need to ensure that it is not used by anyone else in the market.
Monitor the marketplace by checking the press, trade publications and the web for companies using your trade mark without authorisation. It may be that illegal copies of your products are on sale or that competitors are using marks that are similar, but not identical, to your trade mark.
Customs and police are enforcing intellectual property rights on the front line — at the EU borders and in the internal market. To effectively carry out their task, the enforcement authorities need the active engagement of the rights holders themselves. Cooperation is the most effective weapon: thanks to the information provided by the rights holders, enforcers can identify goods suspected of infringing IPRs more easily and subsequently take the necessary action.
The European Union Intellectual Property Office (EUIPO) has developed the IP Enforcement Portal to enable rights holders to protect their products against counterfeiting by sharing information on their products, IP rights and contact data with EU enforcement authorities.
In addition, for customs to be able to take action and detain goods suspected of infringing IPR, you need to file a customs application for action. This can be done electronically through the IP Enforcement Portal.
Use of the tool is free, secure and available in the 23 languages of the EU
Enforcement Agencies in Ireland
The Revenue Commissioners are empowered to take action against infringements of intellectual property rights at points of importation into the State. Revenue is also responsible for liaison and intelligence sharing, with other enforcement agencies, and in particular the National Bureau of Criminal Investigation in An Garda Síochána. An Garda Síochána have a dedicated Anti-Racketeering Unit that deals also with the protection of intellectual property rights within the State such as, in the case of illicit pirated and counterfeit goods.