Asserting your IP rights – What if someone has copied my product, work or brand name?
During the course of business, there may be instances where you encounter disputes relating to intellectual property (IP). This page will provide some general legal information relating to situations where you are looking to assert your IP rights.
If you find that a competitor has copied your product, work or brand, and if you own the relevant IP, such as a patent, trademark or copyright registration (for more detail, see types of IP here), you may be able to assert your rights against that person or company. A violation of your IP rights is called an infringement, and the person who infringes is an infringer.
To assert your IP rights, the first course of action is to confirm that your IP rights are valid, and that there has indeed been an infringement of those rights. An IP lawyer can help with this step, as they are able to confirm that your registration is valid and spot whether there are any potential issues with it; they can also provide a preliminary opinion on the merits of your case. Once this has been done, you can send a demand letter (also called a cease and desist letter) to the infringer. This letter can come from you, your company, or a lawyer, and the purpose of the letter is to put the infringer on notice that they have infringed your rights, and request that they stop what they are doing and/or pay you or get a license for your rights. A demand letter should be carefully drafted so that you are not making any accusations or admissions that may hurt your case later on.
If the infringer does not accept or respond to your demands, the next course of action is to consider filing a lawsuit with the courts. Ultimately, only a court can order someone to stop infringing your rights and/or pay you for the infringement. IP infringement is typically a civil matter, and not criminal so police will not be involved (except in certain cases involving counterfeiting of goods). Lawsuits are started with the filing of a document called a Statement of Claim, which sets out your rights and how they have been infringed by the infringer (who is now a defendant in the lawsuit).
During a lawsuit, most of the time both sides will have lawyers who will assist them with the process. This includes preparing and collecting documentary evidence, examining the other party for oral evidence, working with experts (if necessary), preparing arguments and attending trial. In Canada, typical IP matters will take anywhere from 2 years to 5 years or more from start to finish. However, most IP cases can and will settle before trial, with the parties coming to some form of compromise so as to avoid the uncertainty of trial and further legal costs. Often, what is most important is that the infringer has stopped their wrongful activity.
Please contact Jerry if you have any questions about any of the above. Jerry can assist clients throughout all stages of the enforcement process, including:
Preparing an infringement opinion (to confirm your IP rights, and whether your rights have been infringed)
Sending a demand letter
Commencing an infringement lawsuit
Representing you throughout the lawsuit including attending trial
Disclaimer: The resources published on this website are available for informational purposes only and should not considered legal advice on any subject matter. By viewing these resources, the reader understands there is no solicitor client relationship between the reader and JZC Intellectual Property Law. This website should not be used as a substitute for legal advice, and readers are urged to consult legal counsel on any specific legal questions concerning a specific situation.