Evidence Collection and Assessment
- Collect Evidence: The rights holder must comprehensively gather evidence proving their intellectual property ownership and the infringer’s actions. For example, provide patent certificates, trademark registration certificates, copyright registration certificates to prove rights; collect physical evidence of infringing products, sales records, promotional materials, website screenshots, etc., to prove infringement.
- Evidence Preservation: To prevent evidence from being lost or becoming difficult to obtain, preservation measures can be taken. For instance, apply for pre-litigation evidence preservation with the court or notarize the infringement scene or infringing products.
- Assessment and Analysis: Professional lawyers analyze and evaluate the collected evidence to determine whether the infringement is established, potential compensation amounts, etc., and develop a litigation strategy.
Sending a Cease-and-Desist Letter
- Draft the Letter: The lawyer drafts a cease-and-desist letter, pointing out the infringer’s actions to the infringing party and demanding cessation of infringement and compensation for losses, with a reasonable deadline for response.
- Send the Letter: Send the cease-and-desist letter through formal channels to the infringer and keep proof of sending. The letter may prompt the infringer to settle voluntarily, avoiding litigation costs.
Choosing Jurisdiction and Applicable Law
- Determine Jurisdiction: Based on international treaties, bilateral agreements, and national legal provisions, select a court with jurisdiction. Consider factors such as the defendant’s domicile and the place of infringement.
- Applicable Law: Clarify which laws will govern the case, which may include the law of the place where rights were created, the law of the place of infringement, or a law agreed upon by both parties.
Filing a Lawsuit
- File the Complaint: Submit a complaint and relevant evidence materials to the court with jurisdiction to formally initiate the lawsuit. The complaint must clearly state the litigation request, facts, and reasons.
- Pay Fees: Pay litigation fees as required, which vary depending on the case type and claim amount.
Trial and Judgment
- Pretrial Preparation: Both parties exchange evidence, conduct evidence cross-examination, and the court may organize pretrial mediation.
- Trial: A formal trial is held, during which both lawyers present their arguments, cross-examine evidence, and debate. The judge makes a judgment based on the trial and evidence.
- Judgment Enforcement: If the judgment is in favor of the rights holder but the infringer fails to comply, the rights holder can apply for compulsory enforcement with the court.
International Cooperation and Coordination
- Utilize International Treaties: Leverage international intellectual property protection treaties such as the Paris Convention, Berne Convention, and TRIPS Agreement to safeguard rights.
- Cross-Border Judicial Assistance: In cases involving multiple countries, use judicial assistance channels to obtain evidence, serve documents, etc.
Let me know if you’d like any refinements!