Articles

Published by: Steven Smith

Protect Your Brand

Intellectual Property, such as trademarks, copyright and design rights are often the most valuable asset of a business.

Take, for example, a trademark. Its fundamental purpose is to protect a brand. If someone else starts using it without permission then the trademark owner would be entitled to take legal action against the infringer. However, one of the reasons that a trademark owner may not enforce their rights is the cost of the litigation in doing so. The potential exposure if a party loses (the general rule is that the loser will not only have to pay their own legal fees, but a proportion of the successful party’s fees) can often be the determining factor against a party deciding to commence proceedings.

However, with Intellectual Property cases, proceedings can be commenced in the High Court but also in the Intellectual Property Enterprise Court (“IPEC”). IPEC is designed for less complex and lower value disputes often making it an ideal forum for small/medium sized businesses. IPEC is not simply a “poor relation” to the High Court. The remedies available to a successful party are the same – for example, IPEC can order an Injunction and also award damages, although damages are capped at £500,000 – but most importantly there is a cost cap at £50,000. The advantage of this is that from the outset, parties can more accurately budget and calculate their exposure even on a worst case scenario.

IPEC is an example of the Court system developing a forum which not only deals with cases quickly but it allows owners of Intellectual Property rights to enforce those rights without incurring or risking the exposure of significant costs (which can often be the case in the High Court). Intellectual Property rights are fundamental in the commercial world and if they are not enforced, infringers who ride on the coat tails of established brands will continue to do so with impunity. As with all litigation, the cost of enforcing legal rights should not be viewed in isolation, but rather against the backdrop of what the owner may risk losing in the long term by not enforcing their rights and allowing someone else to reap the benefit of established brands.