Sending a letter of demand is often the first step taken by an owner of IP rights when they suspect a person or business is infringing.
An effective letter of demand will:
- identify your ownership of the rights and entitlement to make the demands
- set out all of the infringing conduct, with written examples if available
- specify the legislation that has been infringed (such as the Copyright Act 1968 or the Trade Marks Act 1995)
- allow a specified period of time for the infringer to stop infringing, return all infringing property to you and provide information that will enable you to calculate a claim for compensation
- state that if the demands are not met you will initiate legal proceedings without further notice.
- Often an infringer will stop infringing once they receive a letter of demand, avoiding the need for further legal proceedings.
In most cases it isn’t a strict legal requirement to send a letter of demand. However, sometimes it may be needed to fulfil contractual obligations.
In some cases a letter of demand might not be the right option. It may give the infringer time to hide or destroy evidence and prejudice your case against them. In these circumstances you might consider going to court without giving notice.
Before you take any action you should consider getting legal advice specific to your situation. It is important to know what rights you have, what remedies are open to you, and the cost and likelihood of success.
Proving infringement is an important issue that should be considered before taking legal action. Making an unfounded claim of IP infringement is legally prohibited and can result in liability for damages.