Enforcing your IP

Two groups of IP Australia staff having a serious discussion

Take action: Enforce your rights

Taking action against a person who infringes your IP rights is known as enforcement. The value of IP rights is directly related to the ability of the owner to enforce them.

Effective enforcement of IP rights is necessary to maintain their value in legal terms, as an ongoing deterrent and to retain the ability to attract commercial value.

Rights that cannot be enforced may be considered worthless, because ownership of them does not prevent other people from using them in any practical sense.

Get professional advice

If you suspect your IP rights are being infringed, or you have been accused of infringing another person's IP rights, we recommend you contact an IP professional.

What is the nature of the infringement or complaint?

The nature of the infringement or complaint is determined by the type of IP rights involved. In most cases legislation governs the nature and extent of the complaint that can be made.

For example, the rights of the owner of a registered design are set out in the Designs Act 2003. The Act also sets out the type of action that can be taken against a person who infringes those rights, as well as the legal remedies and compensation which may be ordered by a court.

Other legislation which defines specific IP rights includes:
Copyright Act 1968
Patents Act 1990
Trade Marks Act 1995
Circuit Layouts Act 1989
Plant Breeder's Rights Act 1994

Complaints can be made about IP matters that are not defined in legislation. For example, ownership of confidential information is a type of IP right not covered by legislation. If a person bound by a confidentiality agreement discloses that information, you may have grounds to take action for breach of confidence. Such an action would seek to restrain that person from disclosing or improperly using the information.

We will not police your IP rights or launch legal proceedings on your behalf. That is your responsibility.

We are not able to become involved in, or give advice relating to, the infringement or possible infringement of IP rights. We are not able to act on behalf of the owner of IP rights.

Act quickly

Whatever action you do take, pursue it vigorously and make sure any infringer knows you are serious about protecting your IP. Delay could also jeopardise your legal rights to obtain an injunction.

Surprise may be the best tactic

Sometimes surprise is the best tactic.

In some cases, giving the infringer notice of a claim gives them time to hide or destroy evidence and prejudice your case against them. In these circumstances it might be appropriate to go to court without giving notice to the infringer.

The court has the power to order an interim injunction. This may be an order that the alleged infringers stop their infringing action pending the outcome of a trial (which can take many months).

The following are examples of applications made on an urgent basis.

Anton Piller order

This is a civil equivalent of a search warrant.

It allows the owner to make a search of an infringer's premises and seize specifically identified items. It is granted when the court is persuaded that there is a serious risk that papers or evidence will be destroyed or removed.

Anton Piller orders are not easily obtained from a court. To obtain one you must demonstrate:

  • a prima facie case of infringement
  • potentially serious or actual damage
  • clear, strong evidence that the alleged infringer is likely to possess relevant documents or evidence
  • clear, strong evidence that relevant documents or evidence are likely to be destroyed or concealed if the infringer has prior notice of the proceedings

Anton Piller orders are often used in actions against former employees who have joined competitors or set up business in competition. They allow the aggrieved party to obtain evidence of the suspected infringing conduct.

However, this is only the first part of the proceedings. You will still need to fulfil all the formal pre- and post-trial procedures, and all other aspects of the alleged infringement still need to be proven in court.

Application for preliminary discovery

You may not know the identity of an infringer until you gain access to relevant information and documents not in your possession.

An order for preliminary discovery requires a person to give information about possible infringers to a plaintiff. The person concerned may not end up being a defendant, but merely someone who has relevant information or documents.

Application for interim injunction

This is an application to the court to immediately stop certain behaviour or to require a person to do certain things.

A court will issue an injunction when it believes there is a serious issue to be tried and monetary damages would not be an adequate remedy.

If an injunction is issued, the infringing conduct, although yet unproven, must be stopped immediately.

Interim injunctions are usually ordered for short periods of time, often one or two days, after which the parties are required to attend court to determine whether or not the injunction should be continued.

If an interim injunction is granted and it is later found that it should not have been ordered, you will have to pay compensation to any person adversely affected.

This is known as an undertaking as to damages, and is a condition imposed by the court prior to granting all injunctions, including Anton Piller orders.

Last Updated: 23/11/2013

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