Commercial Categories of Intellectual Property Rights Infringement

In the UK, the law does not discern between different types of infringement other than the nature of the right infringed – whether it is a patent right, copyright, industrial design or trade mark – and the particular exclusive intellectual property right that has been infringed. For instance, the reproduction right, broadcast right, right to make available, or the right to show the work in public may have been infringed. It is somethimes to delineate the activities leads to the infringement of copyright. Intellectual property rights infringements therefire may be broadly -- and loosely -- categorised into three types of infringement.

Counterfeiting Infringements

First of all counterfeiters are those who imitate a genuine article, brand or business name. Counterfeiting of software, although also readily classified as piracy, takes place when software is sold as the genuine article, rather than as a copy of the software that is known to be unlawful. There are other forms of piracy that are not counterfeiting and steps to avoid doing so.

Innocent Infringement

Intellectual property rights are as a general rule are civil rights in the hands of the owner that do not have an innocence defence available for infringement. There is no innocence defence to infringement. Copyright infringement is similar to passing off one’s business as someone else’s -- it attaches strictly liability for doing so. There is no mental element – i.e. intention – required to be made out by a claimant. The onus to be discharged by a claimant therefore is simply whether, on an objective basis the conduct did on the legal standard deceive the public. It is irrelevant what the defendant intended in or by their conduct. Similarly in respect to patent infringement, the fact that an invention has been made independently without the knowledge of existing patentee’ rights is no defence to infringement. This being said, a lack of knowledge of a previous invention or other intellectual property rights may be taken into account in the assessment of damages or compensation for the benefit of the defendant. This alleged innocence is assessed on an objective basis where some measure of reasonableness is required for the defence to be available. One cannot close their eyes and recklessly put a product on the market and expect the defence to be available to them.

Calculated Risk Infringements

The third type of infringement takes place where a commercial enterprise has a view to placing a competing technology on the market to one that has some form of intellectual property protection. The third party takes advice on the strength of the third party’s intellectual property rights and the prospects of success in defending a claim for infringement. In the event that an infringement is alleged, a number of stances may be taken. Firstly an offer to pay a licence fee to the company by way of compensation for the infringement. The new entrant to the market may look to take the product or service off the market at short notice, or in the best case, where the intellectual property protection for the particular invention or material is weak, stand fast and meet proceedings should they be commenced with reasonable prospects of success. With sound legal advice, the risks may be reduced in the event that a complete breakdown between the parties takes place, and looks to get out of hand.

Conclusion

Use of intellectual property without permission or without the licence of intellectual property rights owner amounts to an infringement of intellectual property rights. A defence to infringement may exist, however businesses should be well of the basis of a defence to claim for infringement before for using protected material and avoid leaving liability to chance.