What is infringement?
IP infringement is the violation or unauthorised use of an IP right. If someone is using your IP without you knowing or without your permission, this may be infringement.
Each IP right has its own legislation which determines:
- The action you can take against a person who infringes your right
- Your legal options
- Possible remedies.
Complaints can also be made about IP matters not specifically covered by legislation. For example, if someone intends to breach a confidentiality agreement, you may be able to stop them from disclosing or improperly using the information.
Why does it matter?
Effective enforcement of your IP right can help to:
- Maintain its legal value
- Deter potential infringers
- Retain the ability to attract commercial value.
Remember, it's your responsibility to monitor the marketplace and defend your rights. While we grant rights, we don't enforce them.
How can I protect my IP?
Here are some helpful tips to avoid being caught out by infringement.
Create an infringement strategy
An infringement strategy is a plan of action you can take to prevent infringement of your IP.
To ensure you create the best strategy for your individual circumstances, we recommend you seek legal advice.
Label your IP
Once you've registered or been granted an IP right, a clear label helps to show that it's been protected.
Label your protected plant variety
When you've been granted a plant breeder's right (PBR), it's important to show that it's protected every time the name of your variety appears.
Protect your registered trade mark
When you have a registered trade mark, you can protect it with the R symbol. It's an offence to use this symbol before it's registered.
Monitor the market
Market monitoring is a key part of managing your IP. It takes some effort to keep on top of what's happening in the market, but it's a helpful way for you to stay aware of any potential infringement. If you need help with monitoring the market, you can pay someone to do this for you. Ask your legal representative for service recommendations.
If you've noticed that someone may be using your IP without your permission, you can take action to stop them.
Search existing IP
It's a good idea to keep watch of new IP entering the market. You can keep up to date with proposed and accepted IP by regularly checking the:
- Australian Trade Marks Search
- Australian Design Search
- Australian Patent Search (AusPat)
- Australian Plant Breeder's Right (PBR) Search.
Protect against counterfeit goods
Counterfeit goods — imitations of your products, often sold at a lower price — are a threat to your business.
Counterfeit goods can:
- Harm brand reputation
- Impact profits
- Discourage innovation
- Risk consumer health and safety.
The increasing incidence of counterfeit goods has prompted many businesses to build in some kind of anti-counterfeit measures that help to identify genuine products.
You can consider:
- Verification and traceability solutions such as QR codes, RFID, and smart finger prints
- Overt features such as holograms, security threads and fibres, watermarks, taggants and microprinting
- Covert features such as fluorescent print and other secret markings.
If you believe someone's importing goods that infringe your rights, you can lodge a notice of objection with the Australian Border Force. This gives them the authority to temporarily seize suspected infringing goods.