When you have discovered that someone is misappropriating your intellectual property, you have multiple options for taking action. What is important is that you take some action and do it quickly and forcefully. The matter could be resolved with something as simple as a letter, or you can end up in court for a full hearing. Working with an experienced IP litigation lawyer will help you evaluate your options and determine the best course of action in your case.
The action that you take depends somewhat on your budget and your timeframe. The first thing that you need to do is get legal help. Enforcing a trademark requires an aggressive and persuasive advocate because the other party may react harshly when they learn that they could be getting sued. Here are some things that could dictate what you do to deal with trademark infringement:
- Your budget – IP litigation can be complex and take time. In some cases, there is no other choice but to opt for full litigation.
- Your timeframe – Depending on the urgency of the situation, you may need to act more forcefully more quickly.
- The financial stakes – While all intellectual property is valuable, there are high-stakes matters that could have a large financial impact on your business.
Your Situation Could Be Resolved by Sending a Letter
The best way to get a quick resolution of a trademark infringement is to send the offending party a cease-and-desist letter. This is a way of making a demand that they stop doing what is harming you. The letter would describe exactly what the recipient is doing and will tell them why it is illegal. It usually ends with a demand to stop certain behaviors that you would list in the letter. The cease-and-desist letter will end with a threat that you will be forced to file a lawsuit if the recipient does not comply with the terms of the letter.
A cease-and-desist letter is usually the most economical way of resolving trademark infringement. It is also a way of clearing up misunderstandings and opening a dialogue without having to sue someone. Many potential disputes are cleared up when the two parties exchange letters and have a back-and-forth. An IP lawyer in Toronto could draft your cease-and-desist letter and effectively write it in a manner that gets your point across.
You may decide that you want to skip the cease-and-desist letter, or sending this letter has not gotten you anyplace. When this happens, you will need to file IP litigation in federal court. Here, the court offers you several ways to enforce your legal rights.
Courts Can Help if Letters do Not
In most cases, you are seeking an injunction from the court that would order the defendant to stop infringing on your trademark. You may also ask for monetary damages and for the court to order the destruction of any products that violate your intellectual property rights.
If your matter is relatively simple, or if your budget dictates it, you can get a decision from a judge based only on written filings and the record. Here, your IP lawyer would submit briefs in your case that details your arguments. They would also file the record in the case with the court. The judge would give the defendant a chance to respond in writing. Then, the judge would issue a decision without needing to hold a full trial or even see the attorneys in court. This may be a good option if you are working on a tighter budget, but it may not be suitable for complex trademark infringement cases.
Alternatively, you could opt for a full trial in court. While this would obviously be the most expensive option, you may not have a choice in complex or high-stakes matters. Some intellectual property matters require witnesses and experts to explain exactly how the other party is infringing on your trademarks. This will also take the most time, but this is a necessity in some copyright infringement cases.
In addition, there is always a possibility that the alleged infringer could be violating criminal law. Canadian law has penalties for certain types of trademark infringement. While most cases are civil, your attorney could review the facts to see if they call for a criminal complaint.
The Alleged Infringer May Even Try to Sue You
At the same time, you could end up getting sued as the trademark owner. After you send a cease-and-desist letter, the alleged infringer could turn around and try to take aggressive action against you. They could take you to court seeking a declaratory judgment of non-infringement. Essentially, they are filing a lawsuit against you, seeking to have a court say in advance that their conduct is not infringing. You could be brought into court, even if you do not end up suing the alleged infringer yourself. This makes it all the more important to have a Toronto IP lawyer representing you when there is any dispute over your trademark.
You registered your intellectual property for a reason. Do not hesitate to enforce your rights if someone is violating them.