What Evidence Do You Need to Win an IP Infringement Case?

Winning an IP infringement case rarely comes down to one knockout document. Courts and tribunals build a picture from several strands of evidence. IP infringement occurs when products, creations or inventions which are protected by IP rights are exploited, copied, or otherwise used without the permission or consent of the owner of those IP rights. That might mean selling counterfeit goods under a registered brand, copying a distinctive product shape, or reproducing copyright material without a licence.

Proof of Ownership

Before anything else, you need to establish that the right exists and belongs to you. For registered rights, that means your certificate of registration and a clean chain of title; assignments, licences or company records showing how the right passed to you.

For unregistered rights, such as passing off or unregistered design right, ownership is harder to provide and relies on dated evidence. A passing off claim, for example, depends on providing goodwill and continuous use. Goodwill is the reputation and consumer recognition attached to your brand or name. This is typically shown through sales figures, advertising, media coverage, customer testimonials, and market share, built up over time. Continuous use can be evidenced by dated invoices, archived marketing materials, and website snapshots showing your brand has been in the market consistently.

Evidence of the Infringing Act

You then need to show, concretely, what the other side has done. In practice, this means:

• Carrying out a trap purchase of the infringing product, keeping the packaging and paperwork, which can reveal the manufacturer or importer.
• Keeping detailed records, for example, photos, videos, and sound recordings of the infringing act, with screenshots capturing any online sale or offer for sale.
• Seeding a database with a deliberately incorrect entry to see if it later surfaces in a competitor’s own database.
• For unregistered designs or copyright, gathering original drawings, prototypes, and a clear chronology of how the work was created.
• Building side-by-side comparisons of your right against the alleged infringement.

Similarity and Likelihood of Confusion

For trade marks, the case often turns on whether an average consumer would be confused. This can be demonstrated by side-by-side comparisons, survey evidence, and examples of actual confusion, such as, misdirected emails and social media comments. For designs, the comparable question is whether the overall impression on the informed user differs.

Evidence of Damage

Courts want to see the commercial impact, not only that the infringement took place. Lost sales figures, licensing income you would otherwise have earned, and evidence of reputational harm, such as, declining reviews and customer complaints. These figures help quantify a claim for damages or an account of profits.

Correspondence and Conduct

Finally, keep a clear paper trail of any cease and desist letters sent, responses received, and settlement discussions. Depending on how a defendant responds often shapes both strategy and, later, costs arguments.

Briffa Bites

To succeed in an IP infringement claim, you need to prove ownership of the right, evidence the infringing act, and show the impact it has had. If your think your IP rights are being infringed, the earlier you start documenting it, the stronger your position will be.

If you need IP advice, get in touch with our legal team at info@briffa.com or through our website form. Our IP experts are here to help.