Steps against infringement for holders
An important first step for a right holder is the careful assessment of the alleged infringement. This examination should address a range of issues, such as whom the infringer is, the impact the infringement may have on his business, the seriousness and the extent of the infringement, or the question of repeated infringement. Generally, it is advisable to seek advice and to try to settle the dispute at an early stage, if possible.
It is encouraged to try settling the situation in a ‘friendly way’ by informing the infringer of the activities in question and pointing out the existence of the right owner’s intellectual property rights. In cases of non-voluntary infringements, an infringer may stop his action upon being informed of the illegality of his behavior. The adequacy of a first notice, however, will depend on the circumstances of a particular case. If the right holder does not have sufficient reason for assuming an infringement, he could become liable for damages resulting from an unjustified warning and subsequent action.
If an infringer does not agree to stop or change his activities, negotiation may become an important element of enforcing one’s rights. Again, the success of such a proceeding will strongly depend on the circumstances of the case. In addition, alternative dispute resolution (ADR) procedures are increasingly recognised as offering an effective means for settling disputes concerning intellectual property.
Often, it may be useful for the right holder to seek professional assistance from an IP attorney or agent before deciding on an appropriate course of action. It may also be useful for a right holder to consider contacting a respective right owner’s association. In areas seriously affected by counterfeiting (increasingly, mass-produced goods such as fashion, sportswear or pharmaceutical products) and piracy (such as music and software business) right owners have formed such organisations in many countries. In the area of copyright, collective management organisations may also be a contact point.
In a number of cases, the right holder will decide to take legal action against the infringer. In most jurisdictions, remedies that may be available to right owners such as injunctions, damages, or provisional measures, will be handled in civil courts. Because of the costs involved in civil litigation, it may be worth considering legal insurance policies in advance, where applicable.