Intellectual Property (IP) is often the most important and valuable asset of a business. IP exists in many forms such as brand names, inventions, manufacturing processes, confidential information and product or industrial designs. Taking steps to identify IP assets and then protecting and enforcing the rights in these is vital to maintain and enhance their value, and competitive edge and value to help ensure that revenue streams are maximised.
Scotland is an IP owner friendly and efficient venue to enforce IP rights and to resolve IP disputes. Scotland is an independent legal jurisdiction within the UK with its own court system. There are designated Scottish IP judges and distinct commercially focussed IP court rules.
Although IP law is in essence the same in Scotland as in the rest of the UK, there are key differences in Court enforcement practices and procedures.
In many cases of IP infringement, Scotland will be the only or the most appropriate jurisdiction in which to take action and can also be the optimum UK forum for ensuring that all IP infringements are caught and stopped. It is important that IP owners and their advisers are aware of and consider Scotland as a valuable dispute forum. There are strategic and commercial advantages to enforcing IP rights in Scotland.
- Wide Protection – A Scottish court can deal with IP infringement if the infringer is based in Scotland, has a place of business in Scotland, or the infringing activity is taking place or is threatened to take place in Scotland. If the infringer has its registered office in Scotland, any order of the Scottish court has automatic effect throughout the UK and, depending on the nature of IP in question, possibly throughout Europe too. An English Court order obtained against a Scottish based infringer will not stop infringing activities in Scotland.
- Interim interdict (injunction) – These are available quickly and are key weapons in the fight against IP infringers, often leading to a swift global settlement. In certain circumstances interim interdicts can be granted without advance notice to the alleged infringer. There is no equivalent to the English Civil Procedure Rules in Scotland. There is also no requirement to give contractual cross-undertakings as pre-condition for grant of interim interdict.
- No automatic disclosure – There is no automatic discovery or disclosure of evidence. The scope of any disclosure is usually narrow, optional and by application. This can offer significant time and cost savings.
- Efficient IP case management Court rules – The rules make litigation as swift and as cost efficient as possible. From the outset the judge will focus on the real issues in dispute and move the case towards a swift final hearing, often within 6 – 9 months of raising the action.
- Specialist IP Judges – The IP judges have built up broad experience in resolving all forms of IP disputes and they have developed a track record of delivering commercial and common sense rulings.
- Caveats protect against ex parte interdicts – Caveats provide advance notice of interim orders such as interim interdicts being granted without notice. Caveats should be filed where there is any hint of a dispute with a Scottish Connection. Often parties outside of Scotland may have engaged in pre-action correspondence about a dispute and parties are caught out by the grant of an interim interdict in the absence of a caveat being filed.
- Publicity – Taking court action in Scotland generally attracts less publicity than can be the case in other jurisdictions. This can be advantageous if a party wishes to minimise any press coverage of raising an action and it can operate “under the radar”.
- Surprise element – Taking court action in Scotland may take the infringer by surprise and involve them being forced to litigate in a court which is not familiar to them, which may encourage a swifter resolution.
- Costs – The cost of issuing a Scottish Action in the Court of Session is approximately £300 whatever the value of the claim and the level of adverse costs exposure are generally around 50% of the other party’s costs.