When intellectual property rights are infringed upon, the owner of the rights is frequently willing to take action to terminate the infringement and avoid additional losses. The IP rights holder’s eagerness and aim are perfectly reasonable. Actions can be done right away in some simple cases of infringement.
However, in some situations of very complicated or well-planned infringement, quick action along with insufficient evidence might make it difficult to successfully prosecute the violators. As a result, it is important to conduct investigation measures in order to gather as much information about the entire scope of the infringement and to ensure that all relevant evidence preservation procedures are followed. Although it may take longer, such measures can help prevent the disgrace of failing to successfully combat infringers due to a lack of evidence.
In reality, it is normal for judges to accept batches of IP infringement lawsuits, and it is also typical for certain businesses to have spent a long period attempting to battle counterfeit products on the market. These steps are important from the standpoint of protecting IP rights.
For cases in which infringement is obvious and has an imminent impact on the brand owner’s business interests, direct administrative complaints, investigation, and handling can achieve notable results. However, such measures have resulted in inertial thinking or misunderstanding, namely, that evidence gathering in IP infringement cases is unimportant or that making excessive efforts to conduct investigations and collect evidence is time-consuming and ineffective.
In reality, it can be shown that in many cases, investigation and evidence gathering began one or two years or more before the lawsuit was filed, and that even in complicated infringement circumstances, favorable results were attained since sufficient evidence was produced.
Choosing a strategy
In various types of circumstances, the foundation of rights, infringement situations, and the aim of right protection vary significantly. A right holder cannot automatically adapt the pattern of other situations to his or her own case, but must instead select the best appropriate strategy for his or her circumstance.
It is important to acquire a clear picture of the infringer and develop a strategy ahead of time in the most urgent situations, and it is not advised to act quickly without understanding the current state of infringement. In general, market infringements do not happen overnight. When a right holder discovers an infringement, the infringer may have already prepared and planned for a longer period of time. At this moment, if the right holder responds without first understanding the opponent, it will be at a disadvantage – preparation is important.
Direct action may provide some outcomes in a basic individual infringement case, although it is largely by chance. Such action is extremely likely to fail in the case of well-planned infringement. Even if such action provides results, infringers can simply avoid their obligations and immediately reorganize with a new wave of infringement.
When some right holders continuously find themselves facing new infringements after the perpetrators have disappeared, even though it was most likely due to their own hasty acts, they will get desperate and lose faith in their capacity to protect their rights.
When a right holder discovers that someone is infringing on their IP, the best approach is to start an investigation to determine the infringement issue, then develop appropriate strategies and action plans. Cutting firewood will not be slowed by sharpening an axe. Even if an investigation reveals that the violation is simple and individual, it is not too late to take action. By doing so, the negative effects of hasty and unprepared responses to complicated infringements can be avoided.
Evidence hierarchy
Because IP infringement cases can be simple or complex, evidence gathering can be done at different levels, such as preliminary or in-depth investigation, depending on the infringement situation. Individual direct infringement in a physical market, for example, can be resolved by administrative complaints and investigations. The purpose of taking action is to cancel a company name that has been registered based on another’s trademark but has not yet begun production or sale of infringing goods. In such situations, collecting evidence is unnecessary because the Administration for Market Regulation maintains a public database of infringers’ names.
Infringements that are thoroughly planned in advance, on the other hand, frequently involve numerous connected infringement issues. The true infringers are frequently hidden. It may be essential to conduct numerous rounds of online and offline investigations in such circumstances. To guarantee that the true infringers are brought to justice, a well-designed evidence-gathering plan must be established. In such complicated cases, sufficient evidence must be well prepared in the early stage in order to withstand the fierce confrontation with infringers in the later action stage.
Coping strategies
Many right holders, worried about infringement, reacted quickly and without gathering adequate evidence in certain circumstances. Right holders frequently felt frustrated when dealing with sophisticated infringers and complicated infringement instances. At this point, the infringers were already highly alert and took precautionary measures against possible actions to be taken by right holders at a later stage, thus making evidence collection much more difficult.
Right holders should, in such circumstances, develop confidence and avoid becoming frustrated as a result of early losses; on the other hand, they should calmly wait for a better chance and actively begin collecting infringement information. In reality, as long as infringers want to benefit from their actions, they will always reveal their motivation at a given point in time or during a certain transaction. Right holders can reverse the unfavorable position caused by any early and hasty acts if they pay careful attention to infringers, grasp comparable opportunities, and gather evidence in a timely manner.
To summarize, in order to counter IP infringements, right holders must consider potential unfavorable situations and place a priority on the process of gathering the necessary evidence. Following the completion of the investigation and evidence gathering, right holders should devise strategies and action plans based on the unique circumstances of the case.
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