Tag Archives: Dispute Resolution

Dispute Resolution Options

When you become involved in any dispute, you will want to know what dispute resolution options are available to you.

Litigation is the approach that usually springs to mind, but it is only one of a number of possible options.

Certainly, as a starting point the involvement of solicitors, and the threat of litigation can sometimes suffice to lead to satisfactory resolution of disputes through negotiations.  The main dispute resolution options are:

The dispute resolution option that is most suitable depends on a number of factors,  including the nature of the dispute.

Negotiation

If simple negotiations with your opponent are not appropriate or do not resolve your dispute you are likely to turn to lawyers for assistance.

Lawyers are often able to reach a satisfactory dispute resolution, through negotiations because the threat of the court process which hangs over the negotiations often leads to a negotiated solution.

So, negotiation can be highly effective.

For IP disputes negotiation may include sending a letter before action or a cease and desist letter in which your case is set out. This demonstrates to your opponent that you are taking the matter seriously. The prospect of more costly formal proceedings may concentrate the mind of the other party and result in the resolution of a dispute.

Litigation

Litigation is the likely next step if the initial letters do not lead to a negotiated outcome.  Once proceedings are commenced the dispute resolution goes through the courts.

Barristers are generally appointed as they have rights of audience before the courts, and are experts in court procedure. Their involvement on a case gives litigants a far better chance of success.

Unfortunately, litigation can be long, and costly. Nevertheless, for some situations it may well be the best approach.  Although arbitration is often referred to as an alternative form of dispute resolution, it is similar to the court process in that a third party will reach a decision about the rights and wrongs of the situation, and that decision is binding on the parties.  One significant benefit of arbitration over litigation though is that the proceedings will be confidential.

Alternative Dispute Resolution

Where the legal rights and wrongs of the situation are of secondary importance to the  commercial considerations such as cost or speed or preserving the relationship between the parties Alternative Dispute Resolution methods such as mediation really come into their own.

ADR can be cost effective and unlike litigation is confidential. It helps preserve relationships. However, if alternatives do not lead to a result then litigation is the only real option for reaching an outcome.

As commercial lawyers we are able to advise on the best way to address your particular dispute  problems.

Commercial Litigation

Commercial litigation refers to the resolution of commercial disputes through the court process.  The term

  • can relate to performance and payment of business contracts
  • the supply and delivery of goods and services
  • the exploitation of commercial know how or intellectual property

Business significance

For many businesses, intellectual property may represent the most important assets they own. Consequently, commercial litigation which involves intellectual property can be of huge significance.

  • Resolving a dispute through the courts can be costly, it is therefore crucial to handle commercial litigation quickly and cost effectively
  • There must be sound business reasons for using the court process to resolve the dispute.

Our business model enables us to keep our overheads low, and yet bring together a large and expert team to handle any commercial dispute. If you are involved in a commercial dispute or require assistance with commercial litigation please get in touch.

Infringement

Infringement is a legal term which is used when your intellectual property rights are encroached on in some way. So if you have an exclusive right to publish a work, and someone else publishes it without your permission, they are infringing your rights. Infringement is most commonly used when someone without permission: copies or uses your copyright;

  • makes a product invented by a person who holds a patent over it;
  • uses a sign to promote their goods or services which is similar to that of a trademark owner.

If your creative work is copied, or someone sells your patented invention, or if a rival takes advantage of your reputation by using a similar trademark, you would probably want to take legal action to stop the infringement, and claim damages.

Tackling Infringement

The owner of IP has the exclusive right to benefit economically from it. However, infringement breaches that right because it tends to

  • divert sales of goods and services to the infringer;
  • reduce demand for sales;
  • eliminate the advantage your products had over those of competitors.

Taking action against infringement will deter other potential infringers, and the consequences can be severe for infringers, for example:

  • IP infringement can result in criminal sanctions where piracy is involved;
  • you may be entitled to recover profits arising from the infringement;
  • or you may sue for the loss of future or past business.

Infringement Online

In the digital world, infringement is a problem due to how swiftly a copy of a work can circulate.

Sometimes people unwittingly use  media, such as images belonging to others, without understanding the copyright implications. For example, a web designer may mistakenly use content found online and assume it is acceptable to use it on a site. In that case both the designer and the site owner are liable and could be sued.

A major reason infringement occurs online is that people wrongly assume that on the internet everything is public domain and available to use freely.

To protect your business and your brand it is important to monitor potential infringement of your intellectual property, and react quickly, but wisely when it happens. The dispute resolution option you choose to tackle infringement will depend on your business and your objectives.

Whether you have been accused of IP infringement, or believe a third party is infringing your intellectual property, Azrights can help you find a solution, protect against future infringement and develop your IP Strategy.

Defamation

Words are defamatory if they tend to damage the public reputation of a person or business. A person or business is defamed if an untrue (reputation damaging) statement about them is “published” to a third party.

The law is changing rapidly in this area, with new legislation coming into effect as recently as 2014, so it is important to seek specialist advice if you believe you may have been defamed, or if you are accused of defaming someone else.

Defamation, libel and slander

Libel and slander are the two different forms of defamation. While slander can be transient, for example a message sent via an internet bulletin board, something published in more permanent form, such as a book, or a page on a website, it would constitute libel.

For a statement to be defamatory, it must generally:

  • be untrue
  • have caused, or be likely to cause, serious reputational harm
  • refer to an identifiable legal person
  • in the case of a business, involve serious financial loss

It is important to take action quickly if you have suffered defamation, as claims must be brought within a year of a defamatory statement being published.

Defamation online

Everyone is a publisher now that blogging and social media are in widespread use. Once a statement is posted online it is often out there for the world to see, and will be difficult, if not impossible to retract. If your website allows others to submit content, you may be found liable for publishing that material if it is defamatory.

Whether you are looking to protect your own reputation, or are a website operator wanting to manage your risks, some steps you can take to improve your position are:

  • ensure that your website terms and conditions include appropriate warranties and indemnities in respect of content submitted by visitors
  • put procedures in place to assess, and if necessary take down allegedly defamatory content from your website
  • ensure you are familiar with the strict time limits and procedures prescribed by the law
  • have a system to monitor your reputation online, so you are alerted to what is being said about you, your brand name, your directors, partners, product or service names on websites and through social media.
  • Implement other, complementary brand protection measures

Brand Name Dispute

Brand name disputes arise if you are using a name or other brand symbol that someone else claims to have a better title to, or if you find someone using confusingly similar branding to yours. As it is not widely appreciated that it is necessary to check the trademark registers before using a name, brand name disputes are one of the most common ones we see.  For example:

  • A domain name is registered, sometimes for thousands of pounds, only for the owner to receive notice that someone else claims better rights to use the name for their business.
  • A domain name is registered that is too similar to a well-known mark.  For example, even if you have managed to buy a domain name for cocacolaclothing.co.uk for your online clothing business it does not mean you are entitled to use it.
  • A logo is registered as a UK trademark, but an EU trademark owner believes it infringes on their word mark, and asks the owner to withdraw all products bearing that logo.

Sometimes the other person may be using their own name in business, but this may conflict with a registered trademark.

Resolving the dispute

Brand name disputes usually take one of three forms:

Whether or not the brand name is a registered trademark, and no matter how strong or weak your position may be, there are a range of ways in which using experienced trademark commercial lawyers will help you to reach the best possible outcome.

If you need to change your name, we can help you find an alternative one and avoid the same problem reoccurring in future.

We are well placed to assist you to resolve any brand name dispute, drawing on our considerable experience to achieve the best outcome for you. So, whether it is your brand that is being used by someone else, or someone has objected to your use of their brand contact us for a free consultation.

Cybersquatting

Cybersquatters register domain names similar to existing trademarks. They have no legitimate claim to the name, and typically use those domains to either earn advertising revenues or try to sell them at inflated prices to the trademark owner.

Generally, the best course of action may be to wait it out so cybersquatters think the domain is not important to you.

Whether they renew the domain or not depends on whether it has a value.  For example, if they are able to earn good amount through “click farming” (that is, by sending Google Adwords and other search engine traffic to their web pages), they are more likely to renew a domain.

  • You should certainly avoid sending the cybersquatters a series of angry emails. If they think the domain name is important to you they will try and hold onto it until you pay.
  • To improve your position make sure you have registered your brand name as a trademark.

We have successfully dealt with cybersquatting situations.

If you have any needs around domain names we are well placed to assist.

Copyright Infringement and Copyright Disputes

Copyright Infringement Disputes

Copyright disputes can arise in a variety of ways. For example, where there are existing contractual arrangements in place governing copyright and the contract is terminated, breached or is otherwise in dispute. Infringement disputes typically arise because:

  • Copyright holders have exclusive rights to copy and distribute the works they own. Where someone copies or distributes a copyright work without the authorisation of the copyright holder, they may be liable for copyright infringement.
  • The law grants exceptions to infringement in certain circumstances. These exceptions are very limited. Some only apply to personal use, rather than commercial use.
  • Infringement is sometimes deliberate, but often people unwittingly use material without understanding the copyright implications. Often they wrongly assume that material on the internet is in the public domain and can be used freely.

Copyright Ownership Disputes

  • When a work or product is created, copyright in it usually belongs to the person who creates it, and the law refers to that person as the ‘author’.
  • Where a work is created by two or more people, it can be complicated to work out who owns the copyright.
  • Subsequent events can trigger a change in ownership. Copyright infringement might arise if there have been many changes in ownership and it is difficult to work out who owns the copyright.

Note that where work is commissioned from another business or freelancer it is sensible to use a contract to determine who will own the copyright.

The legal rules that apply in default lead to some surprising consequences. Where a contract is not used disputes are much more likely to arise.

Resolving Copyright Disputes

It is often common practice to initiate a copyright infringement dispute using a cease and desist letter.

It is advisable to take legal advice before sending such a letter and on receiving this type of letter, as these letters can have implications for you and your business that are not immediately obvious.

Copyright infringement disputes are normally resolved using the type of Dispute Resolution procedures available for other commercial disputes and intellectual property disputes.

Passing Off

Passing off occurs where someone in the course of trade creates an impression that their goods or services emanate from that of another business.

  • Passing off is aimed at preventing customer confusion as this could lead them into buying goods or services under the false impression that originate from another business.
  • Usually a passing off action arises where the branding of a business is copied, although it can encompass more general attempts to replicate another business.

Do I really need to register a trademark?

Although passing off provides some protection against unauthorized use of existing business names where they have not been registered as trademarks, your remedies are much better if you can also argue that your trademark has been infringed.  This involves having a registered trademark .

So, in practice it tends to be much easier and cheaper to take action to stop other businesses from using your name or other branding if you have registered a trademark.

If you have not registered a trademark the law of passing off is your only recourse.

Proving Passing Off

In a passing off litigation action it is necessary to establish that:

  • You have ‘goodwill’ in the name or logo – that is, you have built up a reputation in the mark
  • A third party has made use of your branding in such a way that consumers would be led into believing that the other party’s goods or services were those of your business
  • You have been harmed in some way by the other person’s use of the mark

These three factors can be difficult and expensive to prove and specialist legal advice is usually essential.

International Disputes

In a globalised world where many businesses now operate online it is very likely that disputes that arise will involve businesses operating in different countries.

  • Intellectual property rights are territorial, which means they only apply in countries where they are registered, although in some cases if goods are shipped to other countries, their laws may give some rights based on the business’ use.
  • Although there are international treaties governing intellectual property law, and many countries have adopted very similar intellectual property legal provisions, these provisions are not always interpreted in the same way in every country.

Preventing international disputes

Registration of your intellectual property rights and domain names in markets that are important to you means you are less likely to get caught up in difficult and costly international IP disputes later.

  • If you have not registered your trademark in another country but are an online business and have customers outside your home market you may find that local competitors in that country try to profit from your success by adopting your name.
  • You may be able to use the international trademark application system for many countries.
  • Registering domain names in countries in which you do business should also be prioritized so local competitors do not set up competing websites to take advantage of your success.
  • Protecting patents in other countries internationally may be expensive, but in the long run foreign patents can reduce costly international disputes.
  • Copyright protection is automatic in most countries, however it is vital to secure proof of ownership of copyright that would stand up in court. In some countries copyright registration is advisable to secure additional protection.

How we can help

If an international dispute arises you will need legal advice quickly from lawyers who have experience of international, cross border disputes.

Our international networks enable us to quickly source and appoint local legal representation for you, and to help you to manage the legal costs and timescales.  This gives you maximum impact despite your being outside your home market.

Breach of Contract

Unfortunately there are times when one party does not comply with the terms of a contract and this is referred to as breach of contract. There may be many reasons why one party is in breach of contract and it is important to know your rights if your contract is breached.

  • It is important not to wait too long after a breach of contract before taking action, as an unreasonable delay in time may be regarded as an acceptance of the breach.
  • Where a contract is broken without fault on the part of either party the contract is said to be frustrated (not breached). In this situation both parties are automatically discharged from any further obligations they had under the contract.
  • Where a party was at fault, the main remedy when there has been a breach of contract is to claim damages. It may also be possible, depending on the contract wording, to terminate the agreement.

For further information in relation to specific forms of contract, you may wish to visit the pages below: