Litigation and Intellectual Property Rights
Who can normally be sued for the infringement of intellectual property rights? The answer may not be as simple as it first seems and numerous persons or companies may be involved.
The most obvious candidates are what are known as primary infringers. These are persons directly responsible for the infringement of a breach of intellectual property rights and examples include manufactures, importers or vendors of infringing goods.
It is important to note that liability may not always stop with primary infringers. Intellectual property regimes can also extend the scope of liability to secondary infringers. Secondary infringers are parties who facilitate, authorise or induce an infringement. In most cases for the infringer to be liable, they must have known, or it must have been obvious to a "reasonable person" that they were facilitating, authorising or inducing the infringement.
A third and important category relating to the issue of liability, is that of employers. The tortuous rule where an employer is vicariously liable when an employee commits an infringing act in the course of their employment, also applies to intellectual property rights. The equitable position on the other hand, remains unclear and it can be difficult to understand why it is that an employer may not be equally liable for a breach of an equitable duty (such as breach of confidentiality) as they are for a breach of any other obligation.
The fourth and final group is that of joint tortfeasors. A person will be liable as a joint tortfeasor if they are connected with or associated with a particular infringement. Note however, that not every connection is sufficient to turn an associated person into a joint tortfeasor. The situations where a connection is sufficient will fall into two categories:
1. A situation where one party conspires with the primary party or induces the commission of the tort (for example, a situation where directors who are not normally liable for tortuous acts committed by servants of a company, are privy to the act, in which case, they are liable)1
2. A situation where two or more persons who are joined
in a common design pursuant to which the tort was committed.2 This may be illustrated by a situation where a person within
a group of people commits a tort whilst carrying out the
group's common design and the other members of the group
are also liable as joint tortfeasors.3
- See case of PRS v Ciryl Theatrical
Syndicate [1924] 1 KB 1, 14 -15[^ Return]
- This point is illustrated in
the case of Univever v Gillette (UK) [1989] RPC 583, 608[^
Return]
- See case of Morton -Norwich Products v Intercen [1978] RPC 501, 512, 515[^ Return]
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