The courts may award a variety of different remedies where you claim for intellectual property infringement is successful. Which remedies are available depend on the type of IPR that was infringed and the specifics of the situation.
An injunction is the most common remedy for all IPR infringements. Injunctions are court orders that require named individuals to refrain from doing certain specified acts (eg using the IPR owner’s intellectual property).
Injunctions can take the form of ‘perpetual’ injunctions or ‘interim’ injunctions. Interim injunctions are emergency measures granted prior to commencement of or during proceedings, to prevent a party from carrying out infringing acts while the case is being decided. Perpetual injunctions are typically granted as a final relief by the court, prohibiting the unauthorised use of the IPR.
Failure to adhere to an injunction can result in fines and even imprisonment.
Damages or account of profits
Where a profit has been made as a result of the IPR infringement, the IPR owner may be entitled to compensation. The courts can award such compensation in the form of damages or an account of profits. Note that the IPR owner is typically given the choice between either remedy but they can only choose one.
Damages usually cover the value of the damage done to the IPR owner, while an account of profits covers the profits that the infringing party has made as a result of their infringement.
Where damages are awarded to the IPR owner, a calculation is carried out as to the amount of profit the IPR owner (or exclusive licensee, ie someone who was granted the exclusive licence to exploit the relevant intellectual property rights) has lost because of the infringement.
An account of profits aims to compensate the IPR owner for the loss they have suffered as a result of the infringement. Where an account of profits is awarded, a calculation is carried out as to the profits made by the infringing party as a result of their infringement. The sum awarded under an account of profits aims to put the IPR owner back in the position they would have been in had the infringement not happened (insofar as practicable).
Award of costs
An award of costs is a court order stating that one party has to pay to another party the costs incurred in issuing legal proceedings. An award of costs can either be for the full amount or for a proportion (eg ⅔) of the costs incurred.
Delivery and / or destruction of infringing items
While there is no automatic entitlement to the delivery up or destruction of infringing items (or materials) and items used to make such infringing items, the courts may make such an order when infringement is shown. This relief is typically granted by the courts in addition to an injunction.
Where an order for the delivery of such items is made, this means that the infringing party needs to deliver to the IPR owner all infringing items and, where deemed necessary, the items used to make the infringing items.
Where an order for the destruction of such items is made, this means that the infringing party needs to destroy all infringing items and, where deemed necessary, the items used to make the infringing items.
These steps ensure that the infringing party cannot continue to use the infringing items.
The courts may also make tracing orders which order the infringing party to provide information on where they acquired the infringing items. This is generally used where the infringing party did not create the infringing items themselves.
Failure to comply with a tracing order can amount to contempt of court, which can result in fines and / or up to 2 years imprisonment.