We are a British SME and, although some of our IP rights have been infringed, we do not wish to get involved in a time consuming and costly litigation procedures. How can we enforce our rights alternatively?

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In case you do not wish to get involved in long-term and costly litigation proceedings, a set of alternative measures is available for you.

First of all, you should approach the person/organisation that is supposedly infringing your IP rights by sending a letter of demand, also known as “cease and desist letter". The letter will advise the alleged infringer that a court action may be taken  if  the  infringing  activities  do  not  stop  within  a  certain  period  of  time. It is to be noticed that you should avoid posing threats to the other party, or include false statements as this may lead to your legal liability.

In case the alleged infringement involves shipments of goods from outside of EU (or from EU to third countries) you can bring your claim to the competent customs authority. You can apply a notice with the customs authorities in order to stop shipments of infringing goods directly at the EU border. The intervention application requests the inspection of possible infringing goods imported from or exported to third countries and, where the customs find grounds for infringements, their consequent seizure. This application is valid for one year but can be renewed and no fees are required upon submitting it.

Another viable option is applying one of the Alternative Dispute Resolution (ADR) mechanisms. ADR refers to non-litigious methods to resolve disputes. Depending on the intended result you can choose between informal negotiations and more formal proceedings such as mediation and arbitration. ADR may be advantageous from the point of view of costs and of the likelihood and speed of settlements, as well as appropriate for avoiding that the organisations reputation and, hence, their relations with other organisations and costumers be damaged. Parties  may  agree  in  advance  to  resolve  any  disputes  by  ADR  before  initiating any legal  proceeding,  by  including  ADR clauses  within  commercial  agreements. On the other hand, a court decision may order the  parties  to  pursue  a  specific form of ADR.

In broad terms, negotiation refers to a voluntary and non-binding out-of-court settlement. Even though the assistance of a lawyer is not mandatory, it is strongly recommended that the resulting settlement agreement is to be drafted by a lawyer, since there are complex legal aspects which have to be covered within the final document (compensation, damages etc.).

Mediation is also a non-binding procedure in which an external third party assists the participants in reaching their own decision over a dispute. Mediation is a confidential procedure assuring the parties that any admissions, proposals or offers for settlement will not have any consequences beyond the mediation process.  They  cannot,  as  a  general  rule,  be  used  in  subsequent  litigation  or arbitration.  Most important, the mediator has no decision authority and any settlement result is normally enforceable as a contract, a breach of which is enforceable in subsequent litigation. 

On the other hand, arbitration is a formal procedure in which the parties submit a dispute to a tribunal of one or three arbitrators who issue an enforceable binding decision. What differentiates the arbitration proceedings from the traditional litigation proceedings is that the arbitrator is not bound to follow substantive law, but may also employ concepts of equity and justice, business practices and whatever technical expertise relevant to the case.

In all those cases, it is advisable to seek a proper legal advice, since the course of action will depend on the circumstances of each particular case.