Litigation Strategies and Considerations
Litigation proceedings may be slow and the outcomes may be uncertain. It can therefore be a costly option and the potential for unpredictable decisions may result in an unwelcome outcome.
In the event that you find that someone is infringing your trade mark, you have a number of options available, ranging from doing nothing, fighting all the way or seeking to settle or negotiate with the other side.
We advise of the options and commercially realistic recommendations for each specific matter. However, by way of example, typical options may include:
Taking no action:
You could do nothing and allow the infringers to carry on. The risks associated with this are that there is a danger of your brand being diluted which could make your trade mark right harder to enforce in the future against infringers. You risk ultimately losing your trade mark through acquiescence.The positive side of taking no action is that there are no immediate financial costs.
Fighting your case:
You could instruct a solicitor to help you to fight the case. They will also be able to advise you on the likelihood and changes of success.
The costs associated with fighting a case are usually higher than other options, especially if the case goes to trial, but it could result in the desired outcome. Additionally, fighting for your rights may be the only option left available to you after others have been exhausted.
Settling or negotiating:
You could request a settlement to pay for the damage that has been caused to your business through the unauthorized use of your mark .It would be at your discretion what amount to accept but it would be worth bearing in mind that the other side would be most likely to quickly agree to pay a sum that is substantially less than their potential associated costs of court proceedings. The advantages of a settlement are that it can be processed much more quickly than court proceedings and the outcome is much more certain.
In any litigation proceedings, you should ensure that the costs of an action do not outweigh the benefits of bringing or fighting the claim. When you are considering what strategy to take, you should weigh up the potential costs, risks and benefits of each option against the other options. You should also take account of your opponent and try to understand their motivations and what they are seeking to achieve.
Next – Opposition