IP Private Prosecutions

Prosecuting those who have infringed your IP rights has several benefits. First, should the defendant be found guilty, they can face an unlimited fine along with a potential custodial sentence. It is also possible for the defendant’s assets to be confiscated under the Proceeds of Crime Act 2002. As IP crimes are considered ‘lifestyle’ offences, there is a presumption that all of the defendant’s income for the last six years is the result of criminal activity and is therefore able to be confiscated unless the defendant can show otherwise. Securing successful convictions for IP-related offences therefore also has a deterrent effect, particularly where it is known that a particular brand is active in enforcing its rights.

While IP prosecutions can be brought by the authorities, law enforcement agencies can often lack the resources or expertise to prosecute IP offences, even where there is strong evidence to support a conviction. Bringing a private prosecution therefore enables you to take action against offenders where law enforcement may not do so.

When acting in IP private prosecutions, our team at Ionic Legal, an experienced intellectual property law firm, acts as a minister of justice in the same way as a public prosecutor. We must act fairly and independently, following the evidential and public interest tests outlined in the CPS Code throughout the case.

A private prosecutor is also required to pursue all reasonable lines of enquiry and comply with extensive disclosure obligations, which may include providing information that could potentially affect the case against the defendant. These duties influence the solicitor-client relationship, as certain communications, even if covered by legal privilege, may need to be disclosed in accordance with legal requirements.

The duration of IP private prosecutions depends on several factors, including whether the defendant pleads guilty or not guilty, and whether the case is heard in the Magistrates’ Court or the Crown Court. Court backlogs can also affect the timeframe.

Where the prosecution case is strong, it is common for defendants to plead guilty, in which case proceedings can often be concluded within a few months. However, cases that proceed to a full trial can take up to two years, and in a small number of complex matters, even longer.

At Ionic Legal, an experienced intellectual property law firm, we manage the process efficiently, providing strategic guidance at every stage to help clients resolve matters as quickly and effectively as possible while protecting their rights in copyright infringement or counterfeiting cases.

Costs for IP private prosecutions can be covered by the brand owner, similar to a civil case, or in some instances recouped from central funds after proceedings conclude. Recovering costs from central funds requires the prosecutor to submit a detailed costs application.

A Judge can either summarily assess the costs at the end of a trial or refer them for a detailed assessment. The award may be reduced if the claimed costs are deemed unjustified or unreasonable. Provided that the costs incurred are reasonable and justified, they can generally be recovered from central funds.

At Ionic Legal, an experienced intellectual property law firm, we guide clients through this process, helping to manage costs efficiently in cases of copyright infringement or counterfeiting while ensuring clients maximise potential recoveries.