Intellectual property is a complicated area of the law that many people need some extra help to understand. Here are the answers to some questions that we commonly asked about Ontario IP litigation cases:
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Does My Case Have to Go to Court?
Not necessarily. Many people think that IP litigation only refers to lawsuits. However, the IP litigation process really starts when you find yourself in a dispute with someone else over a trademark or copyright. You may exchange letters with that party over the behavior that is at issue. Many cases are resolved at this point when one party stops their behavior, or both parties come to an agreement.
Sometimes, the dispute is not resolved through negotiation and communication. When that happens, the court process is always an option.
Why Should You Take Action Quickly in Your Case?
One of the defences that someone could use in an infringement case is that you knew about it and let it happen. This is called laches. If you take too long to send a cease-and-desist letter or file a lawsuit, the court may say that you have waived your right to enforce your intellectual property rights. Any delay in taking action could send the wrong message to a judge. Taking action does not mean that you have filed a lawsuit. It could just involve a letter to the defendant.
Is it a Requirement to Negotiate Before I Go to Court?
You do not have to send any letters to the other party. This is usually the best thing to do, but you may also want to go to court as soon as possible because of the damages that you are suffering in the meantime. Negotiation is an option that you have, but it is not an obligation. The court may want to see that you tried to resolve the problem, so we would always recommend that you try to send a letter before you go to litigation.
What if Someone Sends Me a Cease-and-Desist Letter?
The first thing that you should do is get legal help. While the person who sent the letter is not a judge and does not get the final say, the letter could be your way to avoid litigation. If you ignore the letter, and they file and win a lawsuit, the consequences could be significant. Therefore, you should always take the letter seriously. It could be that what they are saying has no merit, or you can make it go away with a discussion. Either way, it is better to have a plan of action after talking to an experienced attorney.
Do I Need a Lawyer for an IP Court Case?
There is no legal requirement to have an attorney in IP litigation. However, your case will benefit from having an experienced attorney. IP cases can be very complex and technical. This is not something that the average person is adept at themselves. There are many legal choices to make during the process that should be made with the help of an experienced attorney.
In addition, corporations are required to have attorneys in IP cases. It is only individuals that have the capability to represent themselves. Nonetheless, given the high stakes that are involved in IP cases, it is better to leave nothing to chance and come to the table with all the firepower that you possibly have.
Do I have to Wait Years to Get an Infringer to Stop?
The court process takes time to unfold. There are very few IP cases that are resolved in under a year. The average case could take 2-3 until a ruling. In the meantime, you may be wondering what to do if someone is causing you harm in the meantime. You may not want to wait three years because their actions are costing you money. You can move for an interlocutory injunction in which a judge would order the infringer to stop pending the outcome of the trial. This would at least get you immediate relief.
Can I Get Damages in IP Litigation?
Not only can you get an injunction, but the defendant may also be ordered to pay you money for their actions. This may be based on what you would have made had the person not infringed on your intellectual property. You may also get disgorgement of their profits. If their actions were bad enough, you may be able to convince a court to award you punitive damages.
How Do I Start an IP Lawsuit?
After contacting an attorney, you would file a statement of claim. This is a document that lays out the facts that form the basis of the infringement claim along with the legal cause of action. This is filed with the court, and you would serve a copy of the complaint on the defendant.