Going to court

If your efforts to resolve the infringement issue outside of court are unsuccessful, or if you choose to bypass these alternative resolution methods, you may wish to start proceedings in a court of law.

Infringement proceedings are very expensive and they allow the other party to challenge the validity of IP rights.

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

Interim injunction

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).

Application for interim injunction

This is an application to the court to immediately stop certain behaviour or to require a person or company 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 this time 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, compensation may need to be paid to the person adversely affected.

Application for preliminary discovery

You may not know the identity of an infringer until you gain access to relevant information and documents. An order for preliminary discovery requires a person or company to give you information about possible infringers. The person or company concerned may not end up being a defendant, but merely someone who has relevant information or documents.

Anton Piller order

Anton Piller orders are the civil equivalent of a search warrant. They allow the owner of an IP right to search an infringer's premises and seize specific items relating to infringing conduct.

Anton Piller orders are not easily obtained. You must demonstrate:

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

An Anton Piller order is only the first part of proceedings. All other aspects of the alleged infringement need to be proven in court.

More information

Please note that the information on this page is general advice and not intended to replace legal advice specific to your situation.

Last updated: 
4 March 2016