Protecting your business in a digital age
In a digital age where brand reputation can make or break business, risks associated with infringement need to be taken seriously by business owners in the North West, says a leading professional services firm.
However, seeking redress by taking legal action against the infringers may not always be the best course of action says Joanne Shelley, partner Knights professional services with offices based in Chester and Hale.She said: “Businesses need to understand that defence of intellectual property shouldn’t just focus on the cost of injunctions, infringement correspondence, mediation or High Court litigation. I ask every client ‘what is the cost of doing nothing and can you afford not to take any steps?’ before we develop a strategy.
“The key things to consider are firstly, the financial impact of intellectual property infringement - has your business lost sales, revenue and market opportunity? What’s the damage to your reputation and business? Could this activity escalate as further copycat infringers see an opportunity to make money? Clarifying exactly what is best for the business as a whole from the outset is important.“IP infringement is particularly prevalent in goods that are sold online but I would strongly advise anyone impacted by this to remain flexible. Some business owners want to stop infringement no matter what the cost, but this isn’t always the best way.
“For instance I worked on a case that involved a large international company affected by trademark infringement. However, the infringing party had created a very established business, with excellent distribution networks and very happy customers. Rather than shutting the business down, an out of court agreement was secured where the infringing party was employed by the affected company. It was a risk that the business was prepared to take and by doing so gained greater control of the brand and the quality of the products associated with it.“There are alternatives to litigation for businesses affected by patent infringement too, for instance offering someone a licence to create your product means that the business still benefits from royalties and revenue.
“This won’t be an option for everyone but if a business has already created new technology for the creation of a product, why not make best use of it? This method can work particularly well if the affected business is planning to invest in new technology within a few years and they are effectively licensing their old technology in the market.“IP isn’t like other areas of law, it is important to take legal advice or the victim could themselves be prosecuted under the Unjustified Threats legislation. For instance if an MD felt that the business was being impacted by infringement and incorrectly demanded the removal of goods for sale before taking legal advice, the recipient could be in a position to sue for damages and costs themselves.
“Finally I think the best IP protection strategies need to be flexible, focussed on the business objectives and timely, with legal advice sought from the onset.”
Joanne has 22 years’ experience in IP law.