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Intellectual property is property which is the fruit of cognitive work or effort. The fruit of this work can be bought, sold, transferred or gifted to a third party. A concept, system, idea, item, design or other such thing which has been worked out in theoretical or cognitive terms, can constitute intellectual property. This property may have value and this value ought to be safeguarded or protected through legal means. Concepts relating to intellectual property are often ventilated in the context of commercial disputes, however this does not mean that other legal principles may not also be involved. A commercial litigation lawyer (as opposed to a specialist intellectual property lawyer) who has run cases in the civil litigation area may have a broader perspective to draw from when contemplating a claim or forming a defence and cross-claim in an intellectual property dispute. There are many sub-areas in which an intellectual property dispute can be litigated. These include matters that fall under:

  • Copyright Litigation
  • Trademarks Litigation
  • Patent Litigation
  • Personal Properties Securities Register Litigation

A common dispute between parties dealing with intellectual property is which of those parties owns title to the property. This can involve principles of common law as well as equitable remedies, as there may be an issue of authorship or origin or questions of title transfer where there is little evidence to establish an incontrovertible case either way. Where there is a contract to assist in the determination of a conflict, inferences may need to be drawn from the conduct of the parties. Where a contract does exist, its terms and conditions may need to be interpreted. In these situations, the general principles of contract law may apply and an intellectual property lawyer with experience in civil litigation will have a deeper understanding of the details of the legal issues.

Often, intellectual property can come into existence when an individual is employed by another, or where that individual is discharging duties under a contract for another party. In these cases, there may well be a clause under the agreement that the intellectual property falls to the employer or the principal on behalf of which a contractor or an agent is performing a service. Nevertheless, it is not inconceivable that there may be a way in which valuable intellectual property which has been created by the person may be salvaged. This will depend on the terms of the contract with the other person and the circumstances under which the intellectual property came into existence. These factual matters will need to be considered in light of recent legal authorities before the intellectual property solicitor can provide legal advice on the issues in contention. Another area of litigation concerns the liability to pay license fees under contract. Common questions are whether such a fee is enforceable. This too will depend on the factual matrix of the case. An intellectual property lawyer with commercial litigation experience will be able to draw from other areas of legal practice experience when assessing the particulars of the case.

The intellectual property litigation team at Navado is integrated with other practice area teams so that the relevant areas of practice are able to communicate and share information for the comprehensive prosecution of a case: whether it involves drafting application or statements of claim, cross-claims or defences, the civil litigation solicitors at Navado who work in the intellectual property field will be able to draw on the library of knowledge accumulated in the commercial litigation team, so that clients suing or being sued in intellectual property matters receive the highest level of litigation services.

If you require assistance with an intellectual property matter, you may wish to contact our office and make an appointment to see one of our solicitors in our Sydney office. By appointment, we can also make a time for you to see one of our lawyers in one of our branch offices. 

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This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.

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