IP monitor: Protecting IP: Ten things you should know before engaging in IP litigation

1. Seek legal advice on your potential claims

The legal landscape governing IP in Canada is complex. It is important to seek the advice of legal professionals with expertise in IP law to ensure all potential claims are brought forward at the outset of litigation.

2. Understand the weaknesses in your case

In most cases, there will be some facts that are unfavourable to the claimant. Understanding the weaknesses in your case early on will help you manage those unfavourable facts throughout the litigation and minimize any impact they have on your claims.

3. Make sure all relevant parties are identified

Due diligence should be conducted to ensure all of the relevant parties have been named in the litigation. Failure to name proper parties can have serious negative consequences on the litigation, including an inability to recover the full scope of damages.

4. Is your claim out of time or barred by an agreement?

Consider whether your proposed claim may be barred by a limitations statute. If it is, consider whether there are other viable claims that are less susceptible to being struck out.

If your claim arises from an agreement, consider whether there are provisions that bar litigation in court and instead require some other forum for handling disputes, such as arbitration.

5. Put your best foot forward

Your initial claim should be as comprehensive as possible, leaving no stone unturned. While parties routinely amend their pleadings during the course of litigation, not all amendments are permitted. You do not want to lose out on a potential claim on the basis that it could have been brought at the outset.

6. Monitor the public domain

There is a wealth of information available to the public that should be scrutinized prior to commencing an action. There may be public documents and / or statements that are harmful or helpful to your case. Understanding what is in the public domain can help you better prepare for litigation.

7. Gather and preserve as much evidence as possible

Your case is only as good as the evidence you put forth to support your claims. Before starting a claim, it is important to gather and preserve all relevant information that you may need to produce in the litigation. You also want to avoid any allegations that relevant documents were destroyed that would have been harmful to your case.

8. Manage your expectations

Litigation comes with risks. As strong as you believe your case to be, there is no guarantee that you will be able to successfully prove your claims in court. You should manage your expectations and always explore alternatives to a trial that can lead to more predictable outcomes, such as mediation.

9. Be creative

There is no “one size fits all” approach to litigation. For example, the same facts could give rise to multiple different claims, which in turn could give rise to different forms of relief. When commencing a claim, it is important to think outside the box and position the issues in a way that is most advantageous to your case.

10. Understand the commitment involved

Litigation is time consuming. While some cases are resolved quickly, others can take several months and even several years to come to an end. As an individual, you should consider the impact that protracted litigation can have on your life and the people around you. As a company, you should consider the amount of resources that will need to be devoted to the litigation, including the time required of your employees to assist throughout the case.