There is always more than one way to skin a cat. And enforcing your intellectual property rights is no different. Whilst the court is available as a forum of last resort, the prudent brand owner will consider alternative methods to reach a conclusion, including negotiating settlements at an early stage. Indeed, if parties fail to do so and are found to have acted unreasonably in refusing then they may be punished with costs orders, even if they are successful.
The concept of negotiated settlements is therefore intertwined in the fabric of our legal system and incentivised to try and improve the efficiency of the overall economy. In the world of IP, conflicts arise on a daily basis, whether it is through trade mark opposition proceedings, infringement of design rights or patent disputes. The majority of these can be settled by the brand owner setting out the basis of its rights and stating clearly that it will not tolerate any encroachment by a third party. That is, after all, the primary purpose of registration in the first place.
A civil approach without being necessarily too aggressive can often ‘nip the problem in the bud’ and is likely to reduce the acrimony between the parties. The rhetoric can always be increased but offering a sensible proposal at an early stage can be a very effective olive branch, saving the parties time and costs.
So whether you are considering an infringement claim at court or opposition proceedings before the registry, it is worth considering whether some form of settlement agreement will be useful. Proceedings may still be the best option, for example to increase leverage, but these can always continue in the background whilst potentially more productive discussions continue.