Intellectual property litigation is risky and expensive, particularly in the UK, and interim injunction applications can greatly increase the final bill. While we do everything possible to deliver the best possible results for our clients, we can give no guarantees. Also, while we keep our own fees low and work closely with specialist solicitors and experts who share our mission of providing the best possible services at the lowest possible costs, we can only do so much to control costs. We have found that clients (both claimants and defendants) appreciate being made aware of alternatives to interim injunction application proceedings.  Some of these alternatives are legal and some are commercial.

Legal Alternatives to an Injunction

Undertaking to Keep Records

The usual purpose of an interim injunction is to protect the claimant from the risk of irreparable damage between the issue of proceedings and trial. One reason why such damage may be irreparable is that the claimant has no means of quantifying his or her loss.   If that can be remedied there is at least a chance that he or she can be compensated fully in damages if he or she is ultimately successful.  A good forensic accountant should be able to quantify loss so long as full and accurate records are kept of the respondent's transactions    If a respondent promises to keep full and accurate records of his or her dealings and make them available for inspection by the applicant's lawyers or auditors   , the interests of the claimant may be safeguarded sufficiently to avoid restraining the defendant from doing something that may well turn out to have been quite lawful.

Brupat Order

If there is any reason to doubt a defendant's ability to pay  damages he or she can offer to pay a proportion of his or her receipts into an escrow account in the joint names of the parties' solicitors as well as keep full and accurate records.   An order containing such undertakings is known as a Brupat order after the decision of the Court of Appeal Brupat Ltd. v Sanford Marine Products Ltd. [1983] RPC 61.   See "Negotiating a Compromise" for a situation where such relief may be appropriate.

Alternative Dispute Resolution

Sometimes there is a remedy that is cheaper and more effective than litigation. Take a domain name dispute for instance.   Both ICANN (the company overseeing the domain name system) and many country code and regional domain name registration authorities such as  Nominet require domain name registrars to incorporate a fast and inexpensive domain name dispute resolution procedure like the Uniform Domain-Name Dispute-Resolution Policy  into their standard terms and conditions.  The WIPO Arbitration and Mediation Centre will resolve generic and many country code top level domain name disputes within 60 days for US$1,500. That is a fraction of the cost of an interim injunction application and in most cases very much faster. Click here for a fact situation where such an application would be appropriate and here for an actual case history. See also "Always Consider the UDRP First" in the IP/It Update blog).

Remedies Overseas

Maybe you can bring proceedings overseas where costs or risks are lower or there are alternative remedies.   We can introduce you to IP specialist lawyers in many other countries such as Toni Tease in the USA or Wei Huang who can put you in touch with Exceedon & Partners in China.   It is worth remembering that the Chinese State Intellectual Property Office  offers administrative remedies for IP infringements which can be cheaper, quicker and more effective than civil proceedings.

Commercial Alternatives

Often the best response to a competitor is a commercial one such as re-branding or launching a new product. If you are likely to be injuncted or cannot be sure of injuncting your competitor we work with marketers who can help you re-brand, product development consultants who can help you design, develop and manufacture a new product, Wei Huang who can help you outsource in China, patent and trade mark attorneys who can register trade marks for your new brand or seek patent or design protection for your new product in any country in which you want to sell it and company, commercial and employment lawyers who can help you in othrr business transactions.   For a typical situation where a claimant might wish to re-brand, read "The Tribute Band" and for a situation where it might be appropriate for a defendant read "Negotiating a  Compromise".

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