IP Actions- Where To Start
Just like the motorist asking directions from the Irish farmer, in copyright litigation the answer often is, “I would not start from here if I were you.”
Although this may appear to give some comfort to anyone being sued for copyright infringement, it also means that copyright lawyers can use up a lot of billable hours in producing detailed evidence for which defendants usually pay if they lose. Defendants can instruct their own specialist copyright lawyers who may feel compelled to raise academic, technical defences and the costs escalate.
This is why you must try to rely on trade mark law to protect your IP which means that you must do three things:
- Have a registered trade mark;
- Make sure it is effective e.g. it is registered in the right class; and
- Design your product so that if it is copied, the infringer also copies the trademark.
Sell your product with a label, a box or other packaging which bears your trademark. The infringer may copy the trademark too. Sometimes inadvertently e.g. photocopying a training manual or sometimes deliberately e.g. the infringer may need to duplicate the packaging to convince a buyer it is genuine.
Therefore, if possible, use a trademark to help protect your IP.
Of course, without money you cannot launch a court action. In this instance, it is even more important to create the impression that you will fight to the death to protect your copyright. If you can’t fight, get a big hat.