The litigation process begins when a certain dispute ends up in court and due to its complexity and length it cannot be solved successfully without legal representation. A litigator will come not only with the necessary knowledge of law, but he will also have the ability to represent you in front of the court and/or in negotiations and ensures the compliance of all the required paperwork.
First let us define litigation, subsequently we will dissect the phases of an IP litigation process:
Litigation is
the process of taking a dispute to a court of law. Generally speaking in the intellectual
property field litigation describes an adversarial process by which one party
tries to restrain another party from engaging in certain types of conduct by
obtaining an order to that effect from a third party usually a court of law if
parties cannot agree between themselves about a fair and proper outcome of a
dispute they will present their respective cases to a court for its judgment.
It is a broad term that describes a lengthy and sometimes complex process.
IP litigation
involves disputes relating to the protected creations of the human mind,
including discoveries, inventions, artistic works, processes, and products.
Since IP is protected by state and federal laws, these disputes are litigated
in both court systems, as well as by arbitration and other alternative dispute
resolution forums and given the global marketplace, IP rights are also an
international concern.
Generally
speaking IP is protected by specific laws relating to patents, trademarks,
copyrights, and trade secrets; these laws acknowledge an innovator’s ownership
of his or her novel creation and give that innovator the exclusive right for a
defined period of time to use and benefit from it.
There are a wide range of cases which can be resolved using litigation; in the intellectual property field the most prevalent forms of litigation can include but not limited to:
·
Breach of patent rights.
·
Breach of the rights conferred by a registered
trademark.
·
Breach of a registered design rights.
·
Breach of copyrights.
·
Breach of other common law rights under the fair-trading
act or via the tort of passing off
·
Challenging intellectual property rights.
The litigation process can be divided into these broad stages:
·
Filing Claims.
·
Filing Defence.
·
Parties exchange lists of relevant documents in
their possession.
·
Inspection of mutually Documents.
·
Usually sequentially an exchange of written statements
of evidences.
·
Matter heard.
·
Issuance of a judgment.
It can take
anywhere between one year and several years to get to trial. This timeline
depends on factors such as the type of proceeding, action, simplified action
and application, the country of trial procedures as well as the schedule of the
court.
There are
several options at your disposal to try to immediately enforce your rights. The
first is to send a cease and desist letter to the infringer that informs them
of your intellectual property rights, describes how they have infringed your
rights, and demands they cease the infringement. While the infringer is not
bound to comply with your demand, often they will do so to avoid further legal
action. If you have already started a court proceeding against the infringer,
you can bring a motion to obtain an interlocutory injunction, which prohibits
the infringer from continuing their infringing activities while the case makes
its way to trial. However, interlocutory injunctions are difficult to obtain in
intellectual property cases.
Federal
legislation and provincial limitation period legislation place time limits on
your ability to obtain relief. Overlapping legislation, the judicial
interpretation of such legislation, the remedies sought and a case individual
circumstances can all affect the applicable limitation period unfortunately
this is not always a straightforward question to answer but time length does
play a big role in the chances of success.
In a regular
action, the plaintiff commences a proceeding by drafting a statement of claim,
which is a document that contains a concise statement of the material facts on
which the plaintiff relies to prove infringement. The plaintiff must also plead
a valid cause of action within the claim, or the facts that allow them to seek
judicial redress in courts. Once the plaintiff files the statement of claim in
Court and it is issued, the plaintiff must then serve the issued claim on all
defendants and file an affidavit of service as proof of that service upon the
defendants. If a defendant does not defend the action, the plaintiff may seek a
default judgment against that defendant. If a defendant does defend, the
litigation will continue against them.
The protection
and advancement of your intellectual property assets necessitates tactical
perception, careful planning and constant vigilance. When your intellectual
property is endangered, you need a law firm with an international strength to
pursue claims around the world which we pride ourselves to be. IP litigation is
a core strength of our firm, and we know how to get favorable results for our
clients we work with you to obtain outcomes that fit your individual business
objectives.
At Scutum IP
Law Form we cover our clients through a litigation process, if it is necessary
to protect our clients’ IP rights, our dedicated IP Litigator has a wise
knowledge and unique methods as well as a huge experience in the Middle East
& North Africa administrative and judicial processes concerning
intellectual property as well as a great deal of technical knowledge. We have
experts based in areas where you need them. Our attorneys based in all our
offices all around the Mena region have extensive experiences enforcing and
protecting IP rights; accordingly, we can ensure a great success in
our client’s favor.
Our team can
provide full litigation support and services that occur in several IP areas, we
offer full administrative legal support, legal advisory and representation of
the parties in front of the Administrative Court, Civil Court or financial
authorities. Moreover, we can also assist you in any out of court negotiations.
For more information on how we can assist you with all IP litigation
matters please do not hesitate to contact us.
Kindly note
that, the above information is simplified and must not be taken as a definitive
statement of the law or practice.