What is IP infringement?
If someone is using your protected product, method or process for commercial gain without your permission, they may be infringing on your IP rights.
This could look like someone else:
- Selling an identical product under a different brand
- Using a method or process in their product without your permission
- Selling a fake version of your design
- Selling the same variety of plant.
If your IP hasn't been infringed, here's what you can do to prevent someone from doing so in the future. From managing an infringement strategy to monitoring the market, it's important to look out for any malicious behaviour towards your interests.
How can I stop the infringement?
You'll first need to make sure infringement has taken place — what counts as infringement depends on the type of IP right involved.
If you think someone has infringed your IP, ask yourself:
- What IP is being infringed?
- What's the value of that IP?
- Who do you believe is infringing your IP?
- What evidence do you have that the infringement has occurred?
It may be tempting to take strong action against a potential infringer, but it may not be your best option. You need to consider the cost of pursuing compared to the potential for lost income.
Keep in mind that making an unfounded claim of IP infringement can result in liability for damages.What to consider before taking legal action
If someone has applied for a similar trade mark, patent, design or plant variety, and you have grounds for a complaint, you can:
- Dispute an application for new IP
- Oppose the registration or grant of new IP
- Oppose an extension of time request
- Request examination or re-examination of an application
- Request removal of a trade mark for non-use.
How to stop infringing goods from coming into Australia
If you believe someone's importing goods that infringe your trade mark, you can lodge a Notice of Objection (NOO) with the Australian Border Force (ABF) for free. This gives them the authority to temporarily seize suspected infringing goods.
To help the ABF identify infringing goods, you can also provide them with information about your brand at any time. Your details are commercially protected and won't be released or used for any other purpose.
You'll also need to lodge a Deed of Undertaking. This is a formal agreement to repay the ABF’s costs resulting from any seizures made (e.g. transportation, storage and destruction costs).
Want to learn more? Visit the Australian Border Force for guides, fact sheets and forms.
How to stop online infringement
If you notice infringement on an online site or e-commerce platform, you can approach the owners of the site to request that they take down infringing content. To find out who owns a website, you can check their domain name's registration in the Australian and international WHOIS databases.
Most e-commerce platforms have a take-down mechanism for responding to IP complaints, including counterfeit and replica goods or other unauthorised items.
If you can't contact or identify the infringer, you may need to engage an investigator or IP professional. If the infringer is outside Australia, you may need to work with lawyers in the relevant country to act on your behalf.
For help with online infringement, check out the World Intellectual Property Organization's (WIPO) Arbitration and Mediation Center. It offers mediation, arbitration, and expert determination to enable parties to settle their domestic or cross-border commercial disputes.
It's important to protect your interests both in and outside of Australia. There are ways to prevent infringement of your IP rights overseas, and actions you can take if you notice something already happening.