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Cross-border intellectual property disputes and how to resolve them
Intellectual property (IP) is an intangible asset identifying and encapsulating the branding of the product or services an organisation provides or a work of art such as a piece of music or a literary work. The is owned by the creator and cannot be used by another organisation or person once registered. It takes the form of copyrights, trademarks, design rights and patents.
The law provides rights to protect the intellectual property of the creator. Some rights arise automatically on creation and other rights must be registered to prevent an un-associated person or organisation from obtaining financial benefits from another person's unique idea.
In order to protect these creations, there are laws that prevent IP infringement and theft. IP can be registered globally or just in the countries in which you wish to trade.
This guide explains what intellectual property is, the rights you have and common infringements. We will also highlight how you can solve a cross-border intellectual property dispute post-Brexit.
Click on the links below to jump to that section:
Find out more about intellectual property matters and your rights
Discover more about the common violations of intellectual property law
How you can protect your IP assets in foreign countries
How IP rights and proceedings have been affected by Brexit
We provide legal advice to our clients to help them with managing IP disputes
We answer the most-searched-for questions concerning IP
What is intellectual property and what rights do I have?
Intellectual property refers to a unique idea or creation developed by the human mind and extends to inventions, artistic designs, names, trade secrets, works of art, literary works, musical compositions and photographs that are used for commercial purposes.
Further unique developments and adaptions of an idea, such as a third party improving the design of an industrial machine, are also protected. It can sometimes be possible to steal such ideas. There are various laws in place worldwide to protect intellectual property. These laws include:
Copyright
Copyright is an automatic right and does not have to be registered or applied for, arising from the moment of creation. Literary works, music and art are just some examples of types of created works that are protected by copyright. Anyone using your creation without your express consent will be subject to copyright infringement laws
Patents
A patent protects a product or invention that can be made and used or a method of doing something including a technical process. It must be applied for and applies for a finite number of years before it must re-applied for in order to maintain the protection of your invention.
To protect your patent, you can apply to the UK intellectual property office (UK IPO), the European Patent Office (EPO), or through the Patent Cooperation Treaty (PCT) which provides a wider level of protection.
Design rights
Registered designs protect the shape, packaging and patterns of a product, but you must apply to register your designs within one month. If you don't register your designs, the shape of the product is automatically protected for 10 years after it was first sold and 15 years after it was first created. Appearance is protected for three years from the date the design was made public.
Design rights can be protected by applying for a Registered Community Design, or Unregistered Community Design, covering the EU. For copyright protection, the UK is a member of several treaties, including the Berne Convention for the Protection of Literary and Artistic Works, so you will automatically be protected.
Trademarks
Logos and product names are protected by registering a trade marks. It must be distinctive and have only one characteristic and may not be similar to another brand. Jingles and sounds can also be registered as a trademark. For trademarks, you can apply to the trademark office in every country you wish to do business in. However, if the country you wish to trade in has signed up to the Madrid Protocol, this is a cost-effective way of registering your trademark with wide range of countries within the Madrid Protocol.
If you believe that another person or organisation has mimicked your trademark leading to brand confusion you must provide proof of ownership, history of trade and that your business has been harmed.
What are the common infringements of intellectual property?
If you believe that your registered IP has been infringed, you can take legal action. Someone may use your name or logo to deceive your potential customers and others into believing that they are dealing with your business or, worse still, produce an inferior product using your intellectual property that damages the reputation of your brand. You will have to weigh up the benefits and risks and also the costs of protecting your concept and your IP assets globally or expanding the countries in which you register your IP rights.
Also, making copies of music or using samples without consent, engaging in corporate espionage by selling your registered design as their own for commercial gain are all examples of IP violations. Misappropriating trade secrets is also an example of a violation.
To settle the infringement issue you can either license out your IP, take legal action or mediate to find a satisfactory resolution. Intellectual property disputes are frequently complex and you should seek expert legal advice to assist you in taking legal action, or activating cease and desist orders. You can find out how we can help you with your IP case here.
How do I settle an intellectual property dispute cross-border?
Often the first action once you have recognised an infringement is to send a "cease and desist" letter informing the person or organisation that you own the IP and that they must immediately stop any activities that infringe your IP rights.
Another way to settle an infringement issue is either license your IP to the offending organisation ensuring that you will benefit financially.
Alternative dispute resolution (ADR) may enable you to reach a resolution without recourse to the courts by way of mediation or arbitration.
Litigation should be considered the last resort due to the time and costs involved, an injunction can be sought that prevents further infringements. You can also seek compensation against the business or individual that infringed your rights, as well as the removal and destruction of the infringed material.
Contact us today to make an application or seek legal action against IP infringements material
Has Brexit affected how I can make a claim?
The Withdrawal Agreement associated with Brexit brought significant changes to the UK, as prior to Brexit, the UK was protected by the overarching European Union IP law.
Trademark changes
From January 1st 2021, coverage of EU trademarks no longer applies to the UK. The UK IP office put in place alternative protection for those that had lost their rights, and comparable UK trademarks are now in place that would provide the same protection as EU trademarks. UK businesses are still able to own EU trademarks, but protection no longer covers the UK. Existing EU trade marks were automatically changed to comparable UK trade marks after January 1st 2021.
Design changes
UK registered designs were not affected by Brexit, but EU counterparts no longer provide protection for the UK. As with trademarks, the UK put in place alternative legal protection that provided similar rights.
Copyright changes
Copyright laws were the most unaffected by Brexit, as international treaty obligations are still in place. Those laws that require EU membership, such as Database rights, will no longer apply. Other laws affected include the Satellite broadcasting "country of origin" principle and online content portability.
You can find out more about how Brexit has affected EU business dealings here.
How Giambrone and Partners can help
Our international lawyers have extensive experience in assisting individuals and businesses settle intellectual property disputes. We can implement effective dispute resolution and even help you apply for territorial and international protection, as well as imposing injunctions and cease and desist orders.
To find out more about how our dispute solicitors can help you, please get in contact with us today.
Common queries
What is intellectual property theft?
IP theft or crime is when someone manufactures or sells products, or utilises a unique creation, that is protected by one or other of the intellectual property laws.
How do you fight intellectual property theft?
By seeking the assistance of a solicitor or international lawyer who specialises in intellectual property rights, who will be able to apply for injunctions against the other party and even help you apply for registrations to help keep theft to a minimum before it begins.