Patently unfair – What are your legal rights if somebody has stolen your idea or product?

The definition of intellectual property is: ‘any type of intangible property that is a result of creativity’. This covers designs, logos, and artistic or literary, works as well as inventions. If you suspect another person or business of infringing on your intellectual property, you could take legal action.

You are also able to take action if you think that somebody has used your tangible property for their own commercial gain, for example if they have infringed your copyright by selling copies of a product you designed or invented. For example, if another business has copied your art work, or if another company is selling your products as their own, action can usually be taken.

What are your rights?

The first step is always to establish exactly what sort of infringement has taken place. Perhaps your patent has been infringed as your product is being sold by another business without your permission, or your copyright is being infringed as your computer program has been copied and used by others. Understanding what infringement has occurred will affect what action you can take and what remedies are available. Specialist solicitors will be able to help with the investigations and identify the action that can be taken.

Investigations into IP infringement may also be carried out by your local Trading Standards Authority (and the police may be involved, in some cases if counterfeiting or fraud is suspected), but you can also conduct your own private investigation and solution as well. Section 6(1) of the Prosecution of Offences Act (POA) 1985 gives you the right to bring your own private investigation to court.

The action you can take will usually be aimed at preventing further infringement and/or claiming damages, although other remedies are also available.

Trademark infringement / Passing off

If you own a registered trade mark and somebody uses one that is similar or identical to sell similar goods or services, they could be committing trade mark infringement. You are protected by the Trade Mark Act 1994 and can still take legal action even if your trade mark is not registered.

If somebody else runs a business which looks like yours (eg. with a similar or identical name, logo, web page layout or product packaging) which is likely to confuse customers into thinking they are dealing with your business, you could take action against them for passing off. In order to do so, you must prove:

  • The trade mark belongs to you
  • You have built up a reputation in the mark
  • Another’s misrepresentation of your trade mark has been harmful to you or your business

Patent infringement

If somebody has stolen your product or process, Section 60(5) of the Patents Act 1997 offers protection for you. It is always best to seek advice from a company commercial solicitor if you think your patent has been infringed.

Design infringement

When you register a design, you gain exclusive rights to use it for 25 years. While it is easier to take action against somebody else copying features of the design in question if it is registered, you could still take action even if you have not registered your design. This can relate to anything from art work to logos and other designs.

Copyright infringement

Copyright of literary, dramatic or artistic works is protected under the Copyright Designs and Patents Act 1988. This can include work such as poetry, novels, movies, songs, computer software, and architecture. Ideas may sometimes be protected if the work is a selection and arrangement of ideas fixed in some tangible form.

Deliberate infringement of copyright can also be classed as a criminal offence if the business in question has done so on a commercial scale. This is known as copyright piracy and you should consider informing your local Trading Standards and/or the police if another business is making copies of your work for sale or distribution. An action for infringement will only be successful if you can prove that the alleged infringing party has actually copied your work.

What should you do?

It is important to keep as much evidence as possible of any infringement that has occurred as you will need this to ensure that your claim is successful. You should seek legal advice from a specialist solicitor as soon as possible, who can help you to investigate, to establish what sort of infringement has taken place and guide you in the right direction when it comes to taking action against the other party. In the first instance, this is normally in the form of sending a formal (pre-action) letter demanding that the infringing action stops immediately, demanding assurances to ensure it will not be repeated, seeking damages and requiring other information to be provided.

If you think a business or individual has infringed your intellectual property rights, contact Verisona Law’s commercial dispute resolution team for advice.

Trade mark registrations, oppositions and renewals

  • advice on registering your company name or logo strengthening your brand
  • transfers of title
  • infringement and passing-off procedures
  • revocation actions and challenges to validity

Patents and protection of inventions

  • advice on registering your invention and protecting your know-how

Copyright and designs

  • advice in relation to the protection and licensing of copyright and designs
  • registration of design rights

Commercial agreements that will release the value of your IP

  • advising developers, licensors and licensees
  • joint ventures
  • research and development
  • data sharing

Confidence and trade secrets

  • drafting of non-disclosure agreements
  • taking injunctive action

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