Sunday, 23 September 2012

Driving on the Small Claims Track

The barriers to enforcement of small IP claims will be lifted from 1 October 2012.
If you are an aggrieved designer, photographer or even brand owner, relief is at hand on the Patents County Court Small Claims Track. Question is how do you drive on it.
Are you eligible?:
Your claim must relate to a trademark, passing off, a copyright or unregistered design right and be worth less than £5000 and that presumably includes cases where all you want is an injunction to stop someone trading as you. But note that you must wait for the trial to get that injunction as there is no interim relief on this track.
How do you start?:
First write to the person setting out the problem as you see it and give them time to reply. Tell them what your rights are, what they have done wrong, what you want and when you want it by. The letter should comply with the pre-action protocol and should say so. Be reasonable and polite the court will see this letter.
If you don't get what you want you need to fill in your Claim Form. You need to set out the particulars of your claim and say you want the  claim to be allocated to the small claims track.
What does it cost?:
The fee depends on how much money you are claiming. For a photograph used without permission it only seems likely you will get more than the National Union of Journalist's Guidelines. See a judgement from the Court in Delves- Broughton v House of Harlot. If you want an injunction its £175 and if you want damages it adds from £35 to £120.

Where do I get help?:
From one of the regular readers of this blog who is a solicitor and will offer you a fixed fee deal. However it doesn't have to be a solicitor. You can use pretty much anyone if you are prepared to attend court with them. You can also use the free mediation service provided by the Courts. If you do use a solicitor there is minimal scope for costs recovery so expect to pay a fee for help and do a lot of the work yourself. Finally there is not a lot of court resource for this service so it all may take a bit of time if there has to be a hearing. However because you can have the matter resolved by the Court that is a big incentive for your claim letter not to be ignored as it may have been before.

The above is intended as something of a idiot's guide intended for  users rather than our email subscribers. Lots of lovely detailed chapter and verse can also be found on Jane Lambert's blog. Its also worth reviewing the Government responses to the call for evidence on this as published by the IPO in March 2012.

3 comments:

Francis Davey said...

"It doesn't have to be a solicitor" - it could also be a barrister! Sorry, my half-pennyworth.

It will be interesting to see if the new track attracts litigants in person in large numbers.

Barbara Cookson said...

Absolutely Francis and Barristers who are prepared to do it all on direct access will be in great demand

Barbara Cookson said...

A Guide has now been published by the Court Services giving authoratitive practical information.