Ireland: Your Brands Products and Services - Part 3 - Defending Your Intellectual Property Rights

Last Updated: 16 December 1996
What can you do if a competitor uses a Trade Mark so similar to your own that people confuse the two, or uses a logo which you have had for years but have never registered? What do you do if an employee in your research and development division leaves and three months later you discover he has set up a competing business which has even been grant aided! What do you do if the person who writes your software programs ups and leaves and you find copies of your programs on sale? Apparently 96% of computer piracy goes unstopped in Ireland.

What do you do when you discover that goods identical to yours but manufactured in Korea are being sold down Henry Street? What do you do when you discover that a chain store is selling a product so similar to yours that everyone assumes you are manufacturing it.

All of these scenarios can have a marked adverse effect on your sales but there are several remedies which the law provides and which can be extremely effective. We cannot emphasise enough the need for proper confidentiality contracts with your employees and for proper records of what you own. This makes any enforcement so much more straight forward.

1. Injunctions

The first and most common remedy is to apply to the Court for an injunction to prevent the infringement.

Application is made on foot of a sworn Affidavit which sets out the story of the infringement, when it first came to your notice and the damage which it will do if it continues. You must show the Court that monetary damages will not be a sufficient remedy, that you have a case which is likely to succeed at the end of the day and that the balance of convenience lies with you, in other words that if the infringement is not stopped immediately you will suffer irreparably.

The most common type of injunction is simply an Order preventing the sale of the infringing product or use of the confidential information. In addition however application can be made for an Order, called an Anton Pillar Order, seizing any documentation and product relevant to the infringement. This can be an extremely useful tool in the case of an employee who has stolen confidential information or trade secrets.

Injunctions can be sought to prevent infringement of a Patent, infringement of a registered Trade Mark, to prohibit a passing-off, to stop infringement of copyright and to prevent abuse of confidential information and trade secrets. Most infringement cases stop after the injunction is granted, but if the matter goes to a full hearing, you will seek monetary damages which will generally be the loss of profit you have suffered.

2. Counterfeit Goods Regulations

Where infringing goods, either with a registered Trade Mark applied to them or which constitute copyright infringement, are being imported from outside the European Union, for example from the US or from the Far East, there is a procedure for the seizure of such goods by the Customs & Excise at the point of entry. This procedure is governed by the Counterfeit Goods Regulations.

A special form is completed setting out either details of the Trade Mark registration or of the copyright claimed and this is lodged with the Customs & Excise people together with a fee of œ400.00 which lasts for three months. You must also give details of the source from which you believe the goods are coming and the Customs & Excise will trace any consignments coming in, seize them and you will have an opportunity to go and inspect them before they are destroyed.

3. Seizure Orders

The Copyright Act makes provision for any copyright owner to apply to the District Court for an Order addressed to the Garda Siochana for them to seize infringing copies of your property. This is an extremely useful procedure in situations where for example street traders are selling infringing tee-shirts with logos on them or footwear, infringing compact discs or tapes and so on. It could also be used in relation to infringing software. The application is made again on foot of an Affidavit and generally we as Solicitors would accompany you to the local Police Station who would then raid either the street traders or the premises and simply take all the infringing goods away in black plastic bags. Subsequent to this another application is made to the District Court to destroy the goods. The counterfeiter also risks criminal prosecution under the Copyright Acts.

In our experience, the Police have been very helpful all over the country in enforcing these Orders.

Once the new Trade Marks Bill is enforced there will be a facility to apply for similar Orders for delivery of goods which have infringing Trade Marks applied to them and it will be a criminal offence to apply an infringing Mark. Hopefully the new Act will be in force by April and Trade Mark owners should become familiar with the new provisions and make use of them.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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