Intellectual Property Disputes: Protecting your Rights


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Intellectual property disputes

Intellectual Property (IP) disputes have gained prominence globally. With the rise of a knowledge-based economy, intellectual property rights have grown increasingly significant, requiring robust legal frameworks to safeguard them. There are a wide range of intellectual property disputes, often caused by IP infringement, these include infringements to trade marks and copyrights and patents.

ARC Costs have a network of dispute resolution solicitors on hand to assist with intellectual property disputes. Moreover, we can assist with the recovery and negotiation of legal costs upon conclusion of these types of disagreements.

Types of Intellectual Property

In England and Wales, IP law broadly covers the following areas:

  • Patents: These protect inventions that are new, inventive, and useful. They confer exclusive rights to inventors for a limited period, usually up to 20 years.
  • Copyrights: Copyright protects creative works, including literature, art, music, and film. It grants creators exclusive rights to reproduce, distribute, and adapt their work.
  • Trademarks: Trademarks are distinctive signs, logos, or expressions identifying the origin of products or services. They differentiate brands and establish consumer trust.
  • Designs: Registered designs protect the visual appearance of products, covering shapes, patterns, and colours.
  • Trade Secrets: Trade secrets safeguard confidential business information, such as manufacturing processes and customer lists. 

Protection of intellectual property

The protection of intellectual property in England and Wales is built on legislation designed to cater to the specific nature of different types of IP. These pieces of legislation align with international standards while addressing the unique needs of the local IP landscape.

Patents Act 1977

The Patents Act 1977 aligns UK patent law with the European Patent Convention (EPC). Key aspects include:

  • Patentable subject matter: The Act defines what can be patented: new, inventive, and useful inventions that can be industrially applied. Exclusions include scientific theories, mathematical methods, and business methods.
  • Application process: Applications are made to the UK Intellectual Property Office (UKIPO), with rigorous examination to ensure the invention is new and non-obvious.
  • Duration: A patent is granted for up to 20 years, provided annual renewal fees are paid.
  • Infringement: Defines acts constituting patent infringement, such as making, using, or selling patented products without permission. Remedies include injunctions, damages, or account of profits.

Copyright, Designs and Patents Act 1988 (CDPA)

The CDPA is the primary legislation for copyright and design rights in England and Wales. Key components include:

  • Copyright Protection: Automatic protection for original literary, artistic, musical, and dramatic works. Copyright lasts for the creator’s lifetime plus 70 years.
  • Design rights: Unregistered design rights protect the shape and configuration of products for up to 15 years.
  • Moral rights: Provides creators with rights to be credited, object to derogatory treatment, and refuse false attribution.
  • Infringement and remedies: Infringement involves unauthorised copying, distribution, and public performance. Remedies include injunctions, damages, and seizure of infringing copies. 

Trade Marks Act 1994

This Act harmonised UK trademark law with the EU Trademark Directive. Notable provisions include:

  • Trademark registration: Allows individuals and companies to register distinctive signs, logos, and names that distinguish their goods or services.
  • Grounds for refusal: Trademarks can be refused if they are descriptive, non-distinctive, or similar to existing marks.
  • Infringement: Involves unauthorised use of identical or similar marks that cause confusion. Dilution through tarnishment or blurring is also prohibited.
  • Duration: Registered trademarks last 10 years, with unlimited renewals.
  • Remedies: Include injunctions, damages, account of profits, and destruction of infringing goods. 

Designs Act 1949

This Act provides for the registration and protection of designs:

  • Scope: Protects the visual appearance of products, including shapes, patterns, and colours.
  • Registration: Requires application to the UKIPO, with publication of the design details.
  • Duration: Registered designs last for up to 25 years, subject to renewal.
  • Infringement: Unauthorised use of registered designs constitutes infringement. Remedies include injunctions, damages, or account of profits.

Trade Secrets (Enforcement, etc.) Regulations 2018

These regulations align UK law with the EU Directive on Trade Secrets, providing greater clarity and remedies:

  • Definition: Trade secrets are confidential business information providing competitive advantages, protected only if actively kept secret.
  • Infringement: Involves the unlawful acquisition, disclosure, or use of trade secrets, often through industrial espionage, breach of confidence, or unauthorized employee actions.
  • Remedies: Include injunctions, destruction of materials, damages, and account of profits. 

Resolving intellectual property disputes

Resolving intellectual property disputes requires specialised mechanisms due to the technical and international nature of the subject matter. Key mechanisms include:

Civil Litigation:

The Chancery Division of the High Court, particularly the Intellectual Property Enterprise Court (IPEC) and the Patents Court, is primarily responsible for IP disputes.

  • IPEC: A specialised court offering streamlined procedures for less complex and lower-value claims, capped at £500,000 in damages.
  • Patents Court: Deals with more complex and high-value disputes, particularly patent litigation

Alternative Dispute Resolution (ADR):

ADR methods such as mediation and arbitration offer quicker and less adversarial resolutions. The UK Intellectual Property Office (UKIPO) provides a mediation service.

Opposition and Invalidity Proceedings:

Before registration, trademarks and patents can be opposed through UKIPO processes, allowing third parties to challenge applications.

Intellectual Property Disputes Case Law

  • Actavis UK Ltd v. Eli Lilly and Company [2017] UKSC 48: This landmark case redefined the test for patent infringement in the UK. The UK Supreme Court moved away from the strict literal interpretation to a more purposive approach.
  • Lucasfilm Ltd v. Ainsworth [2011] UKSC 39: Here, the court addressed copyright issues in 3D models. It clarified that costume designs may not always be protected by copyright.
  • Interflora Inc v. Marks and Spencer plc [2014] EWCA Civ 1403: This case examined the issue of trademark infringement in the context of internet search advertising, emphasising the importance of trademark use in commerce. 

Evolving challenges

Digital Era and Copyright:

The digital revolution presents challenges in copyright infringement due to unauthorised sharing and distribution online. Measures like the Digital Economy Act aim to curb such activities.


The UK’s exit from the EU has impacted IP law, particularly affecting the registration and enforcement of trademarks and designs. New UK-centric mechanisms have emerged.

Artificial Intelligence:

AI has blurred the lines of authorship and inventorship, challenging the traditional concepts of copyright and patents. Recent UKIPO consultations explore possible frameworks.

Globalisation and Trade Secrets:

Global competition heightens the risk of trade secrets being misappropriated across borders, requiring a comprehensive legal response.

Legal costs in intellectual property disputes

The general rule on costs in intellectual property disputes is that the losing party pays the winning party’s costs. However, the Court can apply their discretion in making an alternative cost order in litigation.

Should there be express costs awards stated within the damages settlement, then this will usually apply to the case, for example, if the main action was to be settled by way of Part 36 Offer.

The Court applies its discretion in making a Costs Order and will usually consider the following factors when assessing how costs are to be awarded:

  • Conduct of the case before and during proceedings.
  • The reasonableness of the issues raised.
  • The way in which the issues in the case have been presented or defended.
  • Whether the successful party has exaggerated their claim. 

Law firms typically bill clients on an hourly basis for their intellectual property services . As a client, you are responsible for paying these invoices, and the amount you owe will depend on the complexity of the case. If you win, the court will determine the amount you can recover from the other party.

If you can’t agree on the costs, the court will assess the level of costs you’re entitled to. This assessment can be based on the standard or indemnity basis. In some cases, fixed costs may apply, such as in residential possession and debt claims.

Given the uncertainty of the award or the amount likely to be recovered, it’s important to consider Alternative Dispute Resolution (ADR) before going to court. ADR methods, such as mediation and arbitration, can be a more cost-effective way to resolve commercial disputes.

If you are the successful party to commercial litigation, it is likely that you will be entitled to recover all or some of your legal costs incurred.

In this case, a Bill of Costs will need to be prepared and submitted to the paying party to recover your legal costs and disbursements. The paying party may wish to negotiate costs by serving their points of dispute, which you can further negotiate using points of reply.

If an agreement cannot be reached, parties may proceed to detailed assessment hearing to have their costs assessed by a Judge.

How can ARC Costs assist?

Obtaining the right legal representation is crucial in intellectual property disputes. Whilst ARC Costs can assist with the legal costs arising from an intellectual property dispute, we also maintain a network of specialist intellectual property lawyers and law firms who would be happy to assist in your case.

ARC Costs are highly experienced in advising and assisting with costs issues and disputes in different areas of law. As Costs Draftsman and Costs Lawyers, we can assist in your Commercial Litigation Costs issues.

If a costs award has been made, allowing you to recover costs from your opponent, we can assist with preparing a Bill of Costs on your behalf to ensure maximum recoverability. We can also assist in Costs Negotiations and represent you at detailed assessment proceedings. This can determine the amount of costs you may be able to recover.

If you have been ordered to pay costs to your opponent, we can assist in disputing costs which may be sought and which you may deem to be excessive and unreasonable. We can do this by way of preparation of  Points of Dispute and also through negotiations to ensure you will only pay for costs which are reasonably incurred and not exaggerated.

Should you wish to discuss your costs query with us, please contact us on 01204 397302 or via email at Alternatively, you can complete our online query form and we will contact you to discuss your query further. We can provide expert legal advice on costs in our free, no obligation initial consultation.

We may receive payments from third party solicitors on our panel to whom we may refer your claim. We will never charge you for any referrals made to our panel of third parties.


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01204 397302

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