Whether you have discovered someone using your brand without permission, copying your creative work, or replicating your product design, intellectual property (IP) infringement is a serious legal and commercial issue for any business. Understanding what it is, how it arises, and what you can do about it is the first step to protecting your business.
This article explains intellectual property infringement in plain terms, covers the most common types, and sets out what to do if you are affected.
What is intellectual property infringement?
Intellectual property infringement occurs when a person or business uses, copies, or exploits another party’s protected IP rights without the owner’s permission. This can be deliberate or entirely accidental, but either way it can give rise to legal liability.
IP rights give their owners exclusive control over specific types of creative or commercial assets. When those rights are violated, the owner can take legal action to stop the infringement and seek a remedy.
What types of IP can be infringed?
IP infringement covers several distinct types of rights. Each works differently and protects different assets.
Copyright
Copyright protects original creative works, including written content, software, images, music, and film. It arises automatically on creation; no registration is required. Infringement occurs when someone copies, distributes, performs, or adapts a protected work without authorisation.
Trade marks
A trade mark protects a brand’s name, logo, slogan, or other identifier. Registered trade marks give their owners the right to stop others using confusingly similar signs in relation to the same or similar goods and services. Unregistered marks may also be protected through the law of passing off, which prevents a business from misrepresenting its goods or services as those of another.
In some cases, trade marks that have a significant reputation may benefit from broader protection, allowing owners to take action against use on dissimilar goods or services where that use takes unfair advantage of, or damages, the reputation of the mark.
Patents
A patent protects a novel invention or technical process. Infringement occurs when a third party makes, uses, or sells a patented product or process without a licence. Patent rights must be registered and are time-limited.
Design rights
Design rights protect the visual appearance of a product, including its shape, pattern, or ornamentation. Both registered and unregistered design rights exist in the UK, and each offers a different level of protection.
Primary and secondary infringement
In the context of copyright, UK law distinguishes between two categories of infringement under the Copyright, Designs and Patents Act 1988 (CDPA).
Primary infringement covers direct acts such as copying a work or communicating it to the public. Crucially, a claimant does not need to prove the infringer intended to copy; the act itself is sufficient.
Secondary infringement requires knowledge or reasonable belief that the materials involved are infringing. Examples include importing, possessing, or distributing infringing copies in the course of a business. This distinction matters when assessing liability and the potential remedies available.
What are the consequences of IP infringement?
An intellectual property breach can carry significant legal and financial consequences. Depending on the type of IP and the circumstances, a rights holder may seek:
- Injunctions to stop the infringing activity immediately
- Damages to compensate for losses caused by the infringement
- An account of profits, requiring the infringer to hand over any profit made
- Delivery-up orders requiring infringing materials to be surrendered or destroyed
- Legal costs
Beyond financial exposure, infringement disputes can damage business relationships, delay product launches, and harm a company’s reputation. For that reason, addressing potential IP issues early is far more effective than managing litigation later.
What to do if your IP is being infringed
If you believe someone is infringing your IP rights, acting quickly and strategically is important. Before taking any formal steps, consider the following:
- Gather and preserve evidence of the infringement (screenshots, samples, dates, and details).
- Identify which rights have been infringed and confirm they are valid.
- Assess the scale of the infringement and the likely impact on your business.
- Take legal advice before contacting the infringing party.
In many cases, a formal cease and desist letter from a solicitor is an effective first step. This puts the other party on notice, sets out your legal position, and provides an opportunity to resolve the matter without court proceedings.
What to do if you receive an IP infringement claim
Receiving an IP infringement claim or cease and desist letter can be alarming, but it should not be ignored. Not all claims are well-founded, and you may have valid defences available, including fair dealing, lack of originality in the claimant’s work, or an argument that your use falls outside the scope of the relevant right.
If you receive such a claim, you should:
- Read it carefully and note any deadlines.
- Avoid admitting liability or making payments before taking advice.
- Preserve all relevant documentation.
- Seek legal advice promptly.
Responding strategically can often prevent escalation and protect your position.
How Ignition Law can help
Protecting your intellectual property is not just about defending what you have created; it is about securing the commercial value your business depends on. At Ignition Law, a B Corp certified law firm built for entrepreneurs and growing businesses, our intellectual property solicitors advise on IP infringement from both sides: helping rights holders enforce their IP and advising businesses that have received infringement claims.
Our approach is practical, commercial, and focused on achieving the right outcome for your business, whether that means resolving a dispute quickly or mounting a robust defence.
Contact Ignition Law to discuss your situation and find out how we can help.
Frequently asked questions
What is the difference between copyright infringement and trade mark infringement?
Copyright protects original creative works and arises automatically without registration. Trade mark infringement relates to the unauthorised use of a registered brand identifier. The key difference is that trade marks must generally be registered to benefit from statutory protection, whereas copyright does not require registration.
Can IP infringement be accidental?
Yes. For primary copyright infringement, intention is not required; the act of copying without permission is sufficient. However, intent can be relevant when assessing secondary infringement and when calculating the appropriate remedy.
Do I need to register my IP before I can take action for infringement?
Not always. Copyright and unregistered design rights arise automatically without registration. However, registered trade marks and patents offer stronger, clearer protection and are generally easier to enforce. Taking professional advice on how best to protect your IP is always worthwhile.
How long do I have to bring an IP infringement claim?
Time limits vary depending on the type of IP right and the nature of the claim. As a general rule, claims must be brought within six years of the act of infringement under the Limitation Act 1980. Seeking legal advice promptly is important to avoid losing your right to claim.
