Infringement is the unauthorised use of another person's IP rights. To take action against an
infringer is called enforcement.
In your business, you want to avoid infringement on two levels:
- The first is to protect your IP against infringement;
- The second is to protect yourself against infringing others' IP.
Be infringement ready
A method for detecting infringements should be developed where IP assets are critically
important for business income and success. Know what your rights are and be prepared to act
if your rights are violated. When you detect infringement of your IP rights, it is a good idea to
seek legal assistance in dealing with infringement - this law is complex and you can be sued for
unjustified threats of infringement. Make sure you can prove that infringement has occurred.
Understand the costs, benefits and the risks of infringement actions - legal action can be costly
and drawn out. If infringement has occurred, seek the professional advice of an IP lawyer first,
as there are a range of options you may be able to use before taking the infringer to court.
These range from a letter of warning from your attorney or legal adviser, negotiations to
settle out of court and, if this fails, court action. Whatever action you do take, make sure any
infringer knows you are serious about protecting your IP. Delay could also jeopardise your legal
rights to obtain an injunction.
Protecting your business' IP from infringement on the Internet
When you trade on the Internet, you effectively have a global business because anyone
overseas can access your website. The global nature of the Internet makes IP protection
challenging and enforcement of your IP rights difficult, but you can take steps to minimise
your exposure.
Protect your IP as best you can by taking active measures to discourage misuse. Include a
section on your website which specifically states the terms and conditions for use of your
material. For example, include a clearly visible notice at the beginning or end of a document,
which states that information can only be used if proper acknowledgment is given. You should
also acknowledge any IP you use but do not own on your website or in your documents by
including appropriate copyright ownership notices.
Tools are available to protect your content on the Internet. For example, you can 'watermark'
an image, identify the copyright owner, its country of origin and the permitted uses of the
image. In Australia, a registered trade mark used on the Internet can be protected under the
Trade Marks Act 1995. However, a registered trade mark does not necessarily entitle you to a
domain name of the same name.
When enforcing your IP rights on the Internet it can be difficult to identify infringers or
infringing websites outside Australia. Different countries also have different legal systems, which
further complicates enforcement. The most useful approach is to be proactive - do keyword
searches using your trade mark, visit related websites and maintain vigilance about the way
others use your material.
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