Infringement occurs when someone uses a trade mark that is the same or similar to one already registered for similar goods or services. It is important to be aware of this because it could lead to damages being awarded to the person who has had their registered trade mark breached.
David Gordon from DG Law emphasises the significance of thorough research and planning when starting up a business, before deciding on a trade mark. Small companies often don't have the resources to fund legal actions brought against them for infringement, which can consequently put a large hole in their business plan.
Infringement can be prevented by taking out a court injunction, whereupon it may be possible to claim damages if someone is found guilty of using your invention without your consent. This can be done at the High Court, the Patent’s County Court or the Intellectual Property Office.
However, litigation is expensive and should be the last resort for any business. No matter how strong the infringement claim, it will cost a lot of money to take the case to court. Adam Glass, litigation partner at Davenport Lyons, explains that companies must try to resolve any infringement disputes before opening up court proceedings. The courts strongly encourage mediation between parties, which will certainly be much cheaper for both sides, and it is worth remembering that the winning party of a court case will never get all their cost money back.
There are alternative ways of funding court proceedings for small companies. Lawyers may agree to conditional fee agreements, for example a no-win-no-fee claim. There are also certain types of insurance that firms can take out, such as before the event, and after the event insurance. These can help minimise legal fees for smaller businesses.
No matter how the infringement claim proceeds, businesses must ensure they have all their evidence well documented and organised to show their solicitor. This is required for them to assess the claim properly, and failure to provide it when asked will result in more time and more money being spent on the case. Adam Glass also highlights the importance of choosing the right law firm for your claim. Don't just go to your usual family lawyer, but do your research and spend time finding an expert in your field. Hiring the cheapest lawyer may actually result in paying more money in the long run if you lose the claim.
Patent attorney firm, Mewburn Ellis LLP, explains that it is important to remember that you cannot sue for infringement until your patent has been granted. However, once your patent is granted, you may be able to claim damages in retrospect from the date your patent application was published.