How to manage risk?

Legal protection of intellectual property ensures that exclusive rights are captured, which may be the only power which you can exert against powerful corporations. Conversely, they may be the prime value that you can sell or licence to powerful corporations. Even powerful corporations need to be able to prevent unauthorised use and resist powerful competition.

There are essentially two issues to be concerned with:

  • The chance that someone will take your ideas – your competitive advantage – leaving you with less market share and less leverage;
  • The chance that someone will accuse you of taking their ideas or intellectual capital.

Intellectual property (IP) enforcement

When a right holder discovers that his intellectual property (IP) rights have been infringed, or are about to be infringed, the focus of his attention shifts. He may have previously concentrated on how to obtain and make use of his respective rights, but now his attention will concentrate on making sure that the rights he has obtained through the IP system are respected. This includes stopping unauthorised use, deterring future infringements, and obtaining recovery for damages resulting from the infringing act.

An effective IP enforcement regime depends on a number of different elements. As a result, IP enforcement policies may encompass a range of different issues. IP enforcement may concern details of civil procedure, available remedies, structure and specialisation of courts and appellate bodies, cost of litigation and legal advice.

Additionally, alternatives to court procedures, such as arbitration or mediation, assistance for right holders in enforcing their rights, and technological measures that right holders may take to prevent others from illegal uses of their IP rights, may be relevant. Also relevant may be criminal sanctions, and the role of customs services. In order to enforce their IP rights successfully, the right holder therefore has to take into account a large number of legal issues and practical considerations.

Entities involved in the enforcement of IP rights

Essentially, intellectual property rights are private rights. It is therefore the primary responsibility of the right holder to seek remedies in order to protect those rights. They must monitor the activities of competitors as well as developments in the marketplace, and take action to stop any infringement of rights or obtain recovery of losses.

In serious cases, however, in particular when the infringement of IP rights is intentional and for commercial purposes, many countries will consider such infringements to be criminal, and therefore also provide for action to be taken by the respective authorities.

Accordingly, effective enforcement may require the involvement of a number of persons or entities, such as attorneys, judges, customs, police, prosecutors, administrative authorities, and, in the area of copyright, collective management societies. In many countries, it may also be possible to obtain information and assistance through contacting national organisations or right holder associations concerned with fighting counterfeiting, piracy and other forms of intellectual property infringement.