Infringement insurance – if your IP rights, or those of your client, were infringed how would enforcement be funded?

A recently published report by the European Observatory on Infringements of Intellectual Property Rights concluded that many IP rights holders were unaware of the existence of IP litigation insurance. Of those who were aware that this existed, at least in Europe, there was low uptake of such insurance. This was found to be particularly the case for SMEs.

IP litigation might seem to be a costly burden for cash poor IP rights holders, particularly start-ups, private individuals and SMEs. However, the ability to enforce IP rights is essential to maintain and exploit the value of those rights. Appropriate before the event insurance might not necessarily be linked to a particular IP right but, instead, cover a particular product or product line and all of its associated IP rights.

The report highlights the benefit in thinking ahead about how to protect IP rights. In a litigation landscape where clients and their legal advisers are increasingly looking for creative ways to fund litigation, IP insurance is something that should be factored into the strategic planning of innovation and brand rich SMEs.

On a practical note, before commencing a claim, insurance policies should be checked to confirm if IP enforcement is covered. We also recommend that clients seek legal advice at the outset of brand or product development to foresee, so far as possible, the vulnerabilities in an IP portfolio. Initial advice to rights holders on IP insurance can be found at the UK IPO and we would be happy to discuss this and other potential alternative funding mechanisms for IP litigation.

If IP rights are infringed, Debenhams Ottaway’s specialist IP litigation & dispute resolution team can assist on the proportionate enforcement of those rights.