The Best Fight Is the One You Never Pick

Did you know—the best fight is the one you never pick? Always!

Picture this: You’ve built a brand. A name. A logo. A reputation. You’ve poured your vision into a business that’s gaining traction, growing daily, and finally making waves.

Then one morning, over your favourite cup of coffee, you scroll through Instagram and spot something uncanny. A brand twin. Not you, but using your name. Your tagline. Your colours.

Even your logo's vibe. In that moment, it hits you: this is war.

Welcome to the dramatic, high-stakes, and surprisingly empowering world of Intellectual Property (IP) litigation—where ideas clash, originality is defended, and bold creators stand up for what they’ve built.

But fear not—this isn’t a grim courtroom drama. This is legaltainment: the smart, strategic, sometimes exhilarating journey of protecting your intellectual property. In this article, we’ll take you behind the scenes of trade mark infringement litigation, show you the step-by-step legal process, break down the costs, and most importantly—show you how to avoid court altogether by being brilliantly prepared.

When Great Ideas Collide: The Many Faces of IP Disputes

IP conflicts aren’t always explosive. Often, they sneak up quietly—until suddenly, you’re faced with a copied name, stolen content, or a competitor too inspired by your invention. The most common forms of IP clashes include:

• Trade Mark infringement – When someone uses a name, logo, or slogan that’s too similar to yours and causes confusion.

• Copyright infringement – Copying of content, designs, photos, code, or brand assets.

• Patent infringement – When your protected invention or method is used without permission.

• Trade mark opposition – When someone tries to stop your trade mark registration before it’s approved.

All of these are legitimate IP disputes, each with their own legal toolbox. But today, let’s zoom in on one of the most common and powerful: trade mark infringement litigation—viewed through the lens of the rightsholder determined to defend what’s theirs.

Two Sides of the Same Medal: Infringer vs. Infringed

Every IP dispute has two perspectives—and understanding both is key to navigating conflict with clarity and strategy. On one side stands the infringed party—often a business that has invested time, money, and heart into building a brand, product, or creative asset. For them, seeing their intellectual property used without permission feels like a personal and commercial violation. It threatens their uniqueness, confuses customers, and risks the dilution of hard-earned reputation. On the flip side, the alleged infringer may not always be a villain. They might have adopted a similar name innocently, launched a product unaware of a prior patent, or been poorly advised about what’s “too close.” Sometimes, it’s bold opportunism. Other times, it’s an honest mistake. That’s why clear IP registration, respectful dialogue, and legal due diligence are so important—because in the grey zone between inspiration and infringement, intent matters, but rights rule.

What IP Confrontation Really Looks Like

The perrspective of being the infringing party - A Wake-Up-Call!

Imagine finding out that your brand name, logo, or product design closely resembles someone else's—and they own the rights. Whether you did it deliberately or simply didn’t know, you’re now the infringer. It’s a confronting moment: what felt like creativity or clever branding suddenly becomes a legal liability. You risk takedown notices, rebranding costs, and even lawsuits. Worse, it can damage your credibility with clients and investors. That’s why IP due diligence before launch is non-negotiable. Respecting others’ rights isn’t just legal—it’s smart business. In IP, ignorance isn’t a defence, but it can be an expensive lesson.

Whether You're in the Wrong — or Just in Their Way

When the Claim Is Justified: Own It, Resolve It, and Move On

Sometimes, you genuinely have infringed someone’s IP rights—intentionally or not. The smartest move here is to avoid defensiveness and instead switch into damage control and resolution mode.

Step-by-Step Response:

1. Take the claim seriously: Review the cease and desist letter or claim in detail. Acknowledge receipt and seek legal advice immediately.

2. Engage IP counsel: Have an IP lawyer assess the validity of the claim and your exposure (damages, injunction risk, etc.).

3. Cease infringing activity: If clear infringement exists, pause or modify marketing, branding, or product use immediately.

4. Negotiate in good faith: Demonstrate a willingness to resolve. This may involve:

   • Ceasing use altogether

   • Rebranding

   • Entering into a licence or coexistence agreement

   • Offering a commercial settlement

5. Implement compliance: Once resolved, update your internal procedures (e.g., IP clearance processes) to avoid repeat issues.

A swift, respectful response can turn a dispute into a business relationship—or at least prevent costly litigation.

When the Claim Is Frivolous or Baseless: Push Back with Your IP Arsenal

Sometimes, businesses weaponise IP claims to bully or intimidate. But when you’ve got your IP ducks in a row—a registered trade mark, defensible designs, even patents—you don’t need to retreat. You make them walk away.

1. Call their bluff: Acknowledge their claim without admitting liability, and request specific legal grounds and evidence for their accusations.

2. Deploy your portfolio: Show that your trade marks, designs, or patents are:

   • Properly registered

   • In active commercial use

   • Filed before theirs (priority wins)

   • Fully compliant with classification and scope

3. Expose overreach: If their IP rights are weak (e.g. descriptive trade marks or vague registrations), have your lawyer highlight their vulnerabilities in return correspondence.

4. Issue a counter-threat: If their claim threatens your commercial interests, reserve the right to seek a declaration of non-infringement, damages for unfair competition, or even cancellation of their mark for lack of use.

5. Make costs visible: Remind them that pursuing litigation would expose them to costs, adverse publicity, and potential counterclaims—especially if they’re trying to enforce a flimsy right.

A well-prepared IP portfolio is not just defensive—it’s your deterrent. Bullies rarely pick fights with someone holding the bigger legal sword.

The perrspective of an infringed party - there are people out the copying you name, logo, software or any outcome of a creative process.

Now flip the script. Imagine you’re the one being eyed by a potential infringer. They consider copying your brand, mimicking your product, or piggybacking off your success. But then they check the register—and there you are. Trade mark registered. Patent sealed. Design locked. All in your name. It’s like lifting your coat to show the weapons at your belt—not to threaten, but to signal: we’re ready, and we’re serious.

Unlike Hollywood, IP showdowns rarely involve dramatic courtroom speeches. Confrontation often starts with subtle signs:

• a customer emails asking if you’ve opened a “new store”—but it’s not you,

• you see a suspiciously similar brand pop up in your niche,

• a competitor launches a lookalike product using your name or visual identity.

Initially, you might send a cease and desist letter, hoping the issue resolves peacefully. But if they ignore you, escalate, or double down—it’s time to consider formal legal action.

Let’s walk through what that looks like.

Accordingly, the best lawyer isn’t the one in the courtroom or before the Patent and Trade Mark Office, waving legal swords, but the one who keeps you out of court entirely—so you can focus on what truly matters: beautiful business. Product, brand, growth, customers, legacy. That's the real battlefield worth winning.

But when someone decides to infringe your intellectual property—your trade mark, your creation, your innovation—you must act. Because inaction is never neutral. If your business becomes aware of someone using your brand or product and you do nothing, the law might assume you're okay with it. Over time, that silence becomes permission. It's called an “implied licence”—where tolerance gets mistaken for consent.

And that’s how the value of your brand starts slipping through your fingers.

Most attackers walk away at that point. Not out of fear, but because it simply isn’t worth the financial and reputational risk. In business, money always matters. And if they can only lose, why would they even try?

Before You Sue: Strategic Preparation Is Everything

Jumping into litigation without preparation is like entering a duel with an empty holster. Smart businesses take strategic steps before filing a single document:

Collect Evidence

Save screenshots, websites, invoices, customer feedback—anything that proves someone is using your brand or name without permission.

Check Your Own Rights

Make sure your trade mark is actually registered and valid. Is it current? Are you actively using it? Do you own it in the right classes and countries?

Seek Legal Advice

An experienced IP lawyer will assess whether:

• Your rights are being infringed.

• Your case is strong enough to win.

• It’s smarter to settle or to go full throttle.

Explore Negotiation First

Many disputes end with a well-crafted letter. If your position is strong, and the infringer risk-averse, you might secure a resolution without ever stepping into court.

Budget (and Breathe)

Litigation takes time, energy, and money. Be clear about what you're fighting for—and what it's worth.

So, what’s the smartest move?

Be prepared. Register your IP early. Use it. Defend it.

Let your portfolio of rights do the heavy lifting—so that your brand reputation becomes self-defending. Whether you’re fending off a challenge or preventing one before it arises, the principle remains the same:

Preparedness prevents conflict. Visibility deters copycats. Action protects value.

Trade Mark Litigation: Step by Step

If you decide to take legal action, here’s how trade mark litigation typically unfolds (we’re using the Australian legal framework as our base, but the general flow is similar worldwide):

1. Statement of Claim/ Interlocutory Injunction application

This is your opening move. Your legal team files a Statement of Claim or an Application for an Interlocutory Injunction in court, outlining:

• your IP right (e.g. trade mark)

• the alleged infringement

• what relief you're seeking (e.g., injunctions, damages, costs)

2. Defence & Counterclaim

The accused has a set period (typically 28 days) to respond. They might:

• deny infringement

• challenge the validity of your mark

• argue you haven’t used the mark properly

• even file a counterclaim against you

3. Discovery

This phase is like forensic investigation. Both sides exchange documents and evidence—emails, designs, internal drafts—that support or disprove claims.

4. Mediation or Settlement Talks

Before trial, the court usually recommends mediation. A neutral mediator helps explore settlement options. Why?

Because:

• Trials are risky and costly

• Business reputations are on the line

• Most cases are settled before reaching court.

  
  

5. Trial

If no deal is reached, it’s off to trial:

• Evidence is presented

• Witnesses testify

• Judges ask hard questions

• Both sides make their case

This can take days or stretch for months, depending on complexity.

6. Judgment

The court delivers its verdict:

• you win? You may get an injunction, damages, or an order for the other side to pay your legal costs.

• you lose? You may have to pay theirs.

7. Appeal

If either party disagrees with the outcome, they can appeal—but appeals are expensive and reserved for major legal missteps, not sore feelings.

Show Me the Money: Litigation Costs Explained

Litigation isn’t cheap—but neither is losing your brand. Here’s a breakdown of the main financial impacts across different types of disputes:

Trade Mark Opposition

In a Trade Mark Opposition Proceeding before IP Australia Registrar, you look at the following costs:

Initial Statutory Filing fee: $250

Legal strategy & submissions: $6,000–$15,000

• Notice of Intention to Oppose

• Grounds and Particulars

• Evidence in Support

• Evidence in Reply

• Hearing attendance and written submissions

  
  

  Budget Tip: Prepare around $10,000–$15,000 for a typical opposition.

Cease & Desist + Pre-litigation

Legal letter: $800–$2,500

Negotiation & review: $1,500–$5,000

Settlement agreement: $1,500–$3,000

Bottom Line: $3,000–$10,000 total if settled early.

Full Infringement Litigation

Let's crunch some numbers! According to more than 20 years of experience, this is what one needs to budget for, before considering going into an IP fight:

Preparation & pleadings: $5,000–$10,000

Discovery: $10,000–$30,000

Mediation: $5,000–$10,000

Trial: $20,000–$80,000+

Appeal (if any): $30,000–$60,000

Bottom Line: Full Infringement Litigation, involving barristers, can cost between $40,000 to $150,000 depending on complexity and court level.

Who Pays What?

The loser usually pays a large portion of the winner’s legal costs—but rarely 100%.

“Party-party” costs generally recover 60–70% of actual legal spend.

Don't wait for the fight to come to you. Be the brand that never needs to swing a punch—because your rights speak for themselves. In business, that’s how you win.

THE SIMPLE TRUTH TO CONCLUDE!

In either scenario, preparation is your strongest strategy. If you're in the wrong, your willingness to acknowledge and remedy the situation preserves business integrity. If you're wrongly accused, your registered IP rights, records of use, and legal clarity give you the upper hand—allowing you to stand your ground and send the accuser packing. IP are intangible assets, that most businesses learn to value, when they need them the most and realise, there is nothing.

Because in IP, like in life, confidence comes from knowing what you own—and how to defend it. IP might just be an investment today. It becomes your defence tomorrow and most certainly you lifelong income stream a few days after tomorrow... Take our word for it!