What to do if someone uses your IP

When someone uses your IP without permission, it’s called IP infringement.

For example, someone might:

• copy your trade marked name or logo
• use your design for their own product
• sell a counterfeit version of your product
• use a process you invented without your permission.

There are several things you can do if you think someone is infringing your IP.

First, you need to fully understand and document the issue. Be clear about what IP is being infringed and who you believe is doing the infringing.

Sometimes it can be hard to tell whether someone’s actions count as IP infringement. Infringement generally involves someone using protected IP without permission. But this looks different for different types of IP. IP Australia has more information on recognising IP infringement. 

It’s important to have evidence of the suspected IP infringement. Take pictures, screenshots or copies of anything that shows your IP is being used without permission. Write down all the relevant dates and details.

If the issue relates to registered IP rights (such as a trade mark or patent) then make sure these rights are still registered and up to date. Copyright is an automatic protection that doesn’t need to be registered in Australia. 

If you think someone is infringing your IP, there are several ways you can try to resolve the issue.

For advice on your specific situation, talk to a legal professional that specialises in IP. They can help you:

• understand your rights and options
• help you decide the best action to take
• guide you through the process.

Do nothing

Sometimes the best thing to do is nothing at all. This can be an option when the infringement is unlikely to have a major impact on your business.

If you decide to do nothing, you can keep monitoring the situation. You might still be able to take action later if the situation changes.

Contact them informally

You could contact the other party to let them know about your registered IP rights and give them a chance to stop using your IP. Be polite and professional rather than aggressive or threatening. This can sometimes be enough to resolve the situation, especially if the other person didn’t realise they were doing anything wrong.

However, this approach has risks. What you say may limit your future options for enforcing your IP rights. And making an unjustified claim of IP infringement (even unintentionally) can expose you to liability for costs and damages.

Contact the hosting website or e-commerce platform

If your IP is being used on a website or e-commerce platform, you can ask the owners of the site to take the content down.

Most e-commerce platforms and search engines have a system for handling IP complaints and removing infringing or counterfeit items.  

Send a letter of demand

A letter of demand or cease-and-desist letter is a formal request for the person to stop using your IP. The letter should:

• explain your IP rights
• show evidence of the problem
• explain what you want them to do and by when
• say that you may take legal action if they don’t comply.

It’s a good idea to have a lawyer write this letter. They can help you avoid making any unjustified threats or admissions of guilt.

Consider alternative dispute resolution

If the person still doesn’t stop using your IP, you can try using a dispute resolution technique like mediation or arbitration. These methods can be cheaper and faster than going to court.

In mediation, a neutral mediator will work with you and the other person to negotiate an agreement you’re both happy with.

In arbitration, an expert arbitrator will consider all the facts and make a binding decision on the dispute. Arbitration is less common than mediation.

Take legal action

You might need to take legal action to protect your IP. This means going to court to stop the other person from using your IP. You may also be able to claim compensation from them.

Legal action can be expensive and take a long time, so think carefully before you go to court.

Taking action against someone using your IP in another country can be challenging. But there are some steps you can take to protect your rights.

Work with a local IP expert

It can be helpful to work with a legal professional in the country where you think your IP is being infringed. A lawyer who understands the local laws can help you take the right steps and work with the authorities if needed.

Stop fake products from overseas

Big overseas shopping platforms like Alibaba, Temu, Amazon and Shopify have an online process for reporting IP infringement. They will usually remove items that infringe your trade mark, copyright or other IP rights.

The Australian Border Force can also help stop pirated or counterfeit goods. If someone is shipping products that infringe your IP into Australia, you can ask Border Force to intercept these goods before they reach local buyers.

The best time to stop someone infringing your IP is before they start. Here are a few things you can do to reduce the risk of someone using your IP without permission.

• Register your IP – Register your IP in all the countries where you do business, not just Australia. This gives your IP legal protection in those places.
• Understand the law – Make sure you know exactly what IP rights you have and the protections they offer.
• Label your IP properly – For example, use the ® symbol if you have a registered trade mark with IP Australia. This lets people know your trade mark is protected by law and they can’t use it.
• Keep an eye on your IP – You are responsible for checking if anyone is using your IP without your permission. You can do this yourself or use an IP monitoring service that will alert you if it finds a problem.
• List your IP with e-commerce platforms – Many shopping platforms let you add your trade marks and other IP rights to a brand registry. The platform runs automated checks to detect any infringing items before they are listed for sale.

It’s a good idea to create a strategy outlining the steps you’ll take to protect, manage and enforce your IP.