Have you considered IP insurance?
Written by Ellis Sweetenham on 03 April 2017« Return to Reading Room
While it is of course important that you protect your IP through registration and use, it is also essential that you have the ability to enforce it against those who are trying to exploit it.
While this may seem to be a faraway thought, you never know where an infringement attempt will come from or when it will appear, therefore you need to be sure you have the capability of defending your IP properly.
A way to do this and ensure that you can pay the legal costs to allow Lawdit to assist you with your infringement action to give you the best chance of success, is through insurance.
Investing in IP insurance can allow you to be rest assured that you are covered for your legal costs if you need to take action.
There are varying types of legal insurance with differing levels of cost for you to consider.
Before the event insurance
Before the event or BTE insurance is there to cover legal expenses, both your own or another parties of which you are in dispute. BTE LEI (Before the event legal expenses insurance) is only available to cover infringement claims that have not yet occurred. Therefore, you will need to have this policy in place before any claim is made or a claim is contemplated.
If you are considering this type of insurance, you need to take action to obtain it sooner rather than later. You must consider the likelihood of using it as well as the premiums that need to be paid to obtain it. If you leave it too late, BTE insurance will not be an option.
This may be a cheaper type of insurance as it only allows you to gain an opinion regarding your IP rights rather than take action under your insurance. You can either take an opinion on your claim or your defence of a claim against you. This will be effective if you are not in any rush to take action but will not be efficient if you then to continue to action.
Enforcement and defence
This is the continuation of the policy above. As the title suggests you can use this policy to pay the legal costs of enforcing your IP and taking action against infringers or defending allegations of infringement against you. Enforcement and defence can be contemplated separately if you only want to protect against one side.
This cover is there to pay for any damages you may be liable to pay if you are on the losing end of an infringement claim. This can be an after the event type of insurance but there is a definite that the premium will be very high. You will also need to consider your legal fees as this will not be covered by this type of policy.
There are a number of other policies that you can obtain but as with the ones above, you may be looking to pay a high premium for a policy where it is highly likely you will be claiming on it.
There are a number of benefits to obtaining legal insurance which needs to be weighed up against the potential high cost of premium which depends of the level of risk. These include:
- It can protect cash flow- the insurance can allow you to pursue your dispute without having to use any capital from the business that could be used for growth
- It can provide a deterrent- if the other party is aware that you have insurance to cover your legal expenses, it indicates to them that you are ready to protect your IP if you need to. This may be the factor to stop them infringing.
- If it is not a deterrent, you can use it as a bargaining tool against infringers to negotiate a settlement that is best for you as you have the means to enforce the claim well.
- If you are looking to license your IP the addition of insurance can increase its value as it can be enforced and protected
For more information regarding IP and trade mark insurance, please visit the UK IPO’s website https://www.gov.uk/guidance/intellectual-property-insurance or contact Lawdit Solicitors today.
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