If you are successful in a legal action to protect your IP rights, there are a number of remedies that may be awarded by the court.
The most common remedies are:
- account of profits
- delivery up
- final injunction
Generally, legislation provides that either damages or an account of profits may be sought where an IP infringement action is successful.
Damages compensate the owner for the loss suffered as a result of the infringement. If the owner is not successful, no damages will be awarded and the owner may have to pay the defendant's costs of the litigation.
Under certain IP legislation, such as the Copyright Act 1968 and the Circuit Layouts Act 1989, damages are not available where the infringing party had no grounds for suspecting, or was unaware that its conduct constituted an infringement. In this situation the owner is limited to obtaining an account of profits.
Under the Designs Act 2003, if the party in breach had no knowledge it was committing a breach of that legislation the court may refuse to award damages.
In IP litigation the courts assess damages based on the following general guidelines:
- prejudice to the owner's interests
- loss of profit by the owner
- account of profits made by the infringer
- presumed licence fee
- conversion damages
Conversion damages are awarded when the court deems the infringing articles to have been the owner's property, which the infringer has, in effect, stolen. The amount of damages is usually referable to the amount that the infringer realised on the sale of the articles.
Account of profits
Where the infringers have sold or benefited financially from the infringing goods, the court may order that they pay you a sum equivalent to the profits they made from using your IP.
In cases of copyright infringement, the copyright owner is deemed to be the owner of the infringing goods. In delivery up, the owner is entitled to have those goods rather than have them destroyed.
Once infringement is proved, a permanent injunction preventing the infringer from undertaking any further infringing conduct follows as a matter of course. The infringer will not be able to continue their conduct without a licence to do so from the IP owner.
Last Updated: 13/12/2012