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Patently unfair

View profile for Justin Emerson
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What are your legal rights if somebody has stolen your idea or product?

The definition of intellectual property is: ‘any type of intangible property that is a result of creativity’. This covers designs, logos, and artistic or literary, works as well as inventions. If you suspect another person or business of infringing on your intellectual property, you could take legal action.

You are also able to take action if you think that somebody has stolen your tangible property, if they have infringed your copyright by selling copies of a product you designed or invented. For example, if another business has stolen your start-up idea, if an individual has copied your art work, or if another company is selling your products as their own, action can usually be taken.

What are your rights?

The first step is always to establish exactly what sort of infringement has taken place. Perhaps your patented product is being sold by another business, without your permission, or your copyright is being infringed. Investigations into IP infringement are generally carried out by your local Trading Standards Authority (and the police may be involved, in some cases if counterfeiting or fraud is suspected), but you can also seek legal advice and conduct your own private investigation and solution as well. Section 6(1) of the Prosecution of Offences Act (POA) 1985 gives you the right to bring your own private investigation to court.

Trademark infringement

If you own a registered trade mark and somebody uses one that is similar or identical to sell similar goods or services, they could be committing trade mark infringement. You are protected by the Trade Mark Act 1994 and can still take legal action even if your trade mark is not registered. In this case, if somebody else uses it, you could take ‘passing off’ legal action, for which you must prove:

The trade mark belongs to you

You have built up a reputation in the mark

Another’s misrepresentation of your trade mark has been harmful to you or your business

Patent infringement

If somebody has stolen your product or process, Section 60(5) of the Patents Act 1997 offers protection for you. It is always best to seek advice from a company commercial solicitor if you think your patent has been infringed.

Design infringement

When you register a design, you gain exclusive rights to use it for 25 years. While it is easier to take action against somebody else copying features of the design in question if it is registered, you could still take action even if you have not registered your design. This can relate to anything from art work to logos and other designs.

Copyright infringement

Deliberate infringement of copyright can be classed as a criminal offence if the business in question has done so on a commercial scale. This is known as copyright piracy and you should consider informing your local Trading Standards and/or the police if another business is making copies of your work for sale or distribution. An action for infringement will only be successful if you can prove that the alleged infringing party has actually copied your work.

What should you do next?

It is important to keep evidence of any infringement that has occurred as you will need this to ensure that your claim is successful. You should seek legal advice from a specialist solicitor who can establish what sort of infringement has taken place and guide you in the right direction when it comes to taking action against the other party. In the first instance, this is normally in the form of sending a letter advising of the intention to take action.

This is not legal advice; it is intended to provide information of general interest about current legal issues