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Remedies, Defences and Parallel Trade

Remedies, Defences and Parallel Trade

Available Remedies

If you wish to prevent infringement or continuing infringement, this is achieved by means of an injunction. However, this remedy is only available if you act promptly. You may also (or as an alternative if the damage has already been done) seek damages or an account of profits. In addition, you may also ask the Court to order that infringing items are delivered up.

If you feel that vital documentary evidence might be destroyed, or which may eventually be used to pay your damages might disappear, urgent legal advice should be taken as special actions may be available.

Defences to Infringement

The defendant may claim that whilst he acknowledges the infringement, the infringement was innocent (i.e. he was unaware of the design registration or the existence of the claim to the design right). Accordingly you should anticipate and pre-empt any such claim by using appropriate language and the registered number (in the case of a registered design) on articles embodying your design and design documents.

Care should be taken in alleging infringement of registered designs or design rights - if an unjustified allegation is made you could then face a threats action. It is not a threat for these purposes, however, merely to notify a potential infringer that a design is registered.

Parallel Trade

There are special problems relating to parallel trade within the EU (parallel imports and parallel exports of products incorporating your design where you have already consented to use of the design by another elsewhere within the EU). EU free movement principles restrict use of your intellectual property rights to prevent cross-border trade within the EU under such circumstances.

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