Obtain legal advice on your situation

This IP First Response website has been designed to help IP rights holders navigate IP infringement and enforcement by making it visible, accessible, and to provide information about the factors involved in pursuing different options. It does not provide legal, business or other professional advice, and none of the content should be regarded as recommending a specific course of action. We welcome any feedback via our IP First Response feedback form and by emailing us.

What is it?

Being accused of IP infringement can be a distressing, and potentially confusing, experience. Having a qualified intellectual property (IP) lawyer or a trade marks or patent attorney on your side can help you make sense of an allegation that your product, branding or content is infringing someone else’s IP.

Such professionals can help:

explain the claim in plain language
assess whether, or to what extent, the accusation has merit
outline the full range of ways you may respond, from negotiating a quiet resolution through to defending the matter in court.

Depending on your situation, it may be necessary to seek advice from more than one type of IP professional specialising in IP for different rights in your IP portfolio and different types of enforcement actions (such as court action, which would require a lawyer).

If you already have a trusted lawyer, trade marks or patent attorney, you might talk to them about finding the right IP professional for your circumstances. Alternatively, you could search the Trans-Tasman IP Attorney Board register to find a trade marks or patent attorney or contact your local law society to find a specialist IP lawyer.

What are the benefits?

You receive clear, tailored guidance on the strength of the allegation and any defences.

Early advice may prevent costly missteps such as accidental admissions or missed deadlines.
They can handle stressful correspondence with the other side, letting you focus on the business.
They can negotiate outcomes that preserve commercial relationships and limit public attention.
They are bound by codes of conduct, professional standards and ethical obligations to act in your best interests, stay away from conflicts of interests and unethical conduct
They are able to recognise common issues which come up and refer you to other professionals if and when needed.

What are the risks?

Most IP lawyers and IP attorneys have different specialties and may be more effective in their particular field of expertise. For instance, an IP lawyer may be highly experienced in dealing with trade marks, but not so much in patents, or vice versa. Only an IP lawyer can conduct proceedings in a court so, if you engage an IP attorney rather than an IP lawyer, they would need to refer you to an IP lawyer if you find you need to go to court to enforce your IP rights.
Obtaining professional advice can be costly – see ‘What might the costs be?’ below.

What are the possible outcomes?

The outcomes of seeing an IP lawyer or IP attorney depend heavily on your individual circumstances.

What might the costs be?

The total costs of engaging an IP lawyer or IP attorney will depend on factors such as their fees and other costs and the complexity of the matter.

For trade marks and patent attorneys, you can expect an average fee of:

$500-1,000 per hour for a patent attorney.
$1,000-2,000 total for a trade marks attorney to file and register a single trade mark in one or two classes of goods and services.

Fees for IP lawyers vary widely depending on factors such as their level of expertise, the size of the firm they work for, and where they are based. If an IP lawyer needs to engage a barrister to represent you in court proceedings, this will add to the costs involved.

Some IP lawyers and IP attorneys offer a free initial consultation to assess what services you need and to provide you with an estimate of costs moving forward. The Institute of Patent and Trade Mark Attorneys of Australia provides a service for free consultations. That service can be found here.

It can be a good idea to ask for an indication of how much the entire process may cost during your first meeting. IP lawyers have a professional obligation to provide you with an upfront estimate of their fees and costs.

How much time might be involved?

Your first consultation is likely to take place shortly after you contact your IP lawyer or IP attorney. However, the total length of time for engaging their service will vary greatly depending on what steps you decide to take or the services you decide to use.

How much is this used?

Many businesses use the services of IP lawyers or IP attorneys where they need advice or assistance.

Who can use this?

Anyone concerned about or accused of IP infringement.

Who's involved?

Alleged infringer (you or your business).
Your IP lawyer or IP attorney.

What do you need to proceed?

Do your homework before you meet

Your time is important and an expert's time can be expensive, so it can be useful to prepare before you meet with an IP lawyer or IP attorney. Consider:

Learning more about IP and the specific IP type at the centre of the dispute. Having some basic knowledge will help you to better understand the professional's advice and recommendations.
Researching what the person accusing you of IP infringement is doing in the market (including where they might be based and whether they have registered any IP rights) and being ready to share the results. This will help your IP lawyer or IP attorney to provide you with advice.

Finding an IP lawyer or IP attorney

To find an IP lawyer, you can search on your State or Territory’s law society website:

To find a registered Australian trade marks or patent attorney, you can search the Trans-Tasman IP Attorneys Board directory: Find an IP attorney or firm | Trans-Tasman IP Attorneys Board.

Tips for choosing an IP lawyer or IP attorney

Here are some suggestions for choosing an IP lawyer or IP attorney for your IP:

Ask for recommendations from other business owners or members of your industry association.
Ask how much you'll be charged and how long the service will take.
Don't assume that all IP lawyers or IP attorneys specialise in the type of IP that you have.
Try to determine if you can establish a trusting relationship. If you don't feel comfortable sharing relevant information, it could be difficult for an adviser to work in your best interests.
If you think you may need to go to court, speak to an IP lawyer rather than an IP attorney.