Assets for a business can significantly contribute to their net worth. This is one of the most significant reasons why businesses protect their assets such as their trademark, copyright, patents, other types of intellectual property and more. If you believe that your intellectual property rights are being infringed, you have a few options available to you. To assess the situation better, you can ask yourself the following questions before taking any action.
- What outcome would you like to achieve?For example, are you looking for compensation or to merely have the infringement stopped
- Are you aware of the different court options to help you enforce your rights?You will need to assess which court or path would be the right one for your given circumstance.
- What are your options for proceedings?
In Canada, the Patent Act gives the owner of the patent the right to sue for infringement. Even if you are not the patent owner, if you are a party of interest, a patent lawyer can help you determine whether your case is sufficient to continue with a lawsuit. However, you will be required to name the owner of the patent as a party to the infringement. The same set of standards will also be used if you are suing for Trademark infringement. If the outcome you are looking for is the infringement to be eliminated, there are several options available to you, we will discuss three of them.
Cease & Desist Notification
The first option is sending the infringing party a cease and desist letter. This step takes place before any litigation. The cease and desist letter includes details of the intellectual property that is being infringed and informs them that they need to stop. Some businesses may be unaware of the infringement and will simply stop using the intellectual property, especially if they do not want to get caught up in a legal battle. If you do not receive a response after sending the cease and desist letter or you receive a refusal, your next step could be an injunction.
Seeking an Injunction
Injunctions are obtained through the court systems and are used to force a party to cease their infringing activities. A judge may choose to grant or deny the injunction at their discretion. Seeking an injunction can be a slow process as it requires a trial to determine the facts of each individual case. While waiting for the trial, the alleged infringement may continue, unless you request an interlocutory injunction from the court, which would mean that the intellectual property in question cannot be used until the trial. Keep in mind that it can be challenging to obtain, however, it may be granted under special circumstances. During the trial, you will have to prove your ownership of the intellectual property, provide evidence of infringement and likely defend your patent against allegations of invalidity.
Receiving or Destroying Infringed Property
The third option would be Delivery-up and Destruction. This option may be available after success at trial. If granted in your favor, you can request for delivery-up or destruction of all infringing materials, which would require all the infringing products to be delivered to you or destroyed.
Keep an eye out for part 2 of this blog, which outlines the damages you are entitled to if the courts rule in your favor.If you have any questions about your intellectual property, you can contact our team for a free consultation.