Trademark and Copyright Infringement Investigation

Someone is using your brand or copying your work – what happens next

Trademark and copyright infringement costs UK businesses millions of pounds annually in lost revenue, brand damage, and legal costs. Counterfeit goods bearing your trademark undermine your pricing and reputation. Copied designs, pirated software, and plagiarised content divert revenue to infringers who bear none of the development cost. Online marketplaces make it easier than ever for infringers to reach your customers – and harder than ever to stop them all.

This article explains the legal basis for trademark and copyright protection in the UK, how infringement is detected and investigated, the evidence needed to take legal action, and the remedies available to rights holders.

Trademark infringement: the legal basis

What trademarks protect

A registered trademark protects a sign (a word, logo, shape, colour, or combination of these) that distinguishes your goods or services from those of other traders. Registration gives the owner the exclusive right to use the mark in relation to the goods or services for which it is registered. It also gives the right to prevent others from using an identical or confusingly similar mark.

Trademark infringement under the Trade Marks Act 1994 occurs when a person uses an identical mark for identical goods or services (section 10(1)), uses an identical or similar mark for identical or similar goods or services where there is a likelihood of confusion (section 10(2)), or uses an identical or similar mark in a way that takes unfair advantage of, or is detrimental to, the distinctive character or repute of a well-known mark (section 10(3)).

Unregistered trademarks can be protected through the tort of passing off, which requires the claimant to show goodwill in the mark, a misrepresentation by the defendant, and damage to the claimant’s goodwill. Passing off claims are harder to establish than registered trademark infringement because the claimant must prove goodwill through evidence of trading history, reputation, and consumer recognition.

What constitutes infringement

Infringement includes using a protected mark on goods or packaging, offering or exposing goods for sale under the mark, importing or exporting goods bearing the mark, using the mark in advertising, and using the mark in business papers or online. Infringement does not require the infringer to have intended to infringe – innocent infringement is still infringement, although intent affects the available remedies (an innocent infringer may not be liable for damages, though injunctive relief is still available).

Copyright infringement: the legal basis

What copyright protects

Copyright protects original literary, dramatic, musical, and artistic works, as well as sound recordings, films, broadcasts, and typographical arrangements. In the UK, copyright arises automatically when a qualifying work is created – there is no registration requirement. The owner has the exclusive right to copy the work, issue copies to the public, perform or show the work in public, communicate the work to the public (including making it available online), and make adaptations of the work.

Copyright infringement under the Copyright, Designs and Patents Act 1988 occurs when a person does any of these acts without the copyright owner’s permission, in relation to the whole or any material part of the work. This is assessed qualitatively, not just quantitatively – copying a small but distinctive or original part of a work can constitute infringement.

Common forms of copyright infringement

Copying website content (text, images, videos) without permission. Reproducing software without a licence. Selling counterfeit DVDs, books, or music. Using photographs without the photographer’s permission. Reproducing product designs that are protected as artistic works. And distributing copies of copyrighted materials through file-sharing platforms or online marketplaces.

Detecting infringement

Online monitoring

The internet is both the primary channel for infringement and the primary tool for detecting it. Monitoring services scan online marketplaces (Amazon, eBay, Etsy, Alibaba), social media platforms, and websites for unauthorised use of your trademarks or copyrighted content. Image recognition technology can identify visual copies of your product designs, logos, and photographs. Text-matching tools can identify copies of your written content across the web.

Regular monitoring is necessary because infringers are persistent. Removing one listing from eBay does not stop the infringer from creating another. Sending a takedown notice to one website does not prevent the same content from appearing on ten others. Proper enforcement requires ongoing monitoring and repeated action.

Market surveillance

Physical markets, trade fairs, car boot sales, and retail premises can be sources of counterfeit goods. Investigation teams attend these venues, identify suspected counterfeit goods, make test purchases, and document the evidence for legal proceedings. Test purchases provide physical evidence of the infringing goods, their quality, packaging, labelling, and any documentation, that strengthens the case.

Customs watch

Trademark owners can apply to HM Revenue and Customs (HMRC) for a border enforcement application under the Counterfeit and Pirated Goods (Customs) Regulations 2019. This enables customs officials to detain goods that they suspect infringe a registered trademark at the point of import. The trademark owner is then given an opportunity to inspect the goods and confirm whether they are genuine or counterfeit. This is one of the most reliable tools for intercepting large consignments of counterfeit goods before they reach the UK market.

Industry intelligence

Trade associations, industry bodies, and competitor intelligence networks can provide early warning of infringing activity. If a competitor or industry contact reports seeing your brand or products being sold by unauthorised parties, that information triggers investigation.

Investigating infringement

Gathering evidence

Legal proceedings require evidence that proves both the existence of the right (your trademark registration or copyright ownership) and the act of infringement (the defendant’s use of your mark or reproduction of your work). Evidence gathering involves purchasing the infringing goods (test purchases, preserved with documentation of the purchase date, location, price, and seller), documenting online infringement (screenshots, URL records, website archives, social media records), identifying the infringer (who is behind the website, the marketplace listing, or the market stall?), and preserving the evidence chain (maintaining a record of how each piece of evidence was obtained, by whom, and when).

The identity of the infringer is often the most difficult element to establish. Online sellers may use pseudonyms, P.O. Box addresses, and anonymous payment methods. Marketplace listings may be registered under fictitious names. Websites may be hosted through privacy-protecting registrars. Tracing the real identity behind an anonymous online presence requires investigation skills: web registry searches (WHOIS), payment trail analysis, delivery address tracking, and, where necessary, court orders requiring online platforms to disclose seller information.

Test purchases

A test purchase provides the strongest evidence of infringement. The investigator purchases the suspected infringing product through a normal transaction, preserving the receipt, packaging, and any accompanying documentation. The product is then compared against the genuine article to confirm that it is counterfeit or that it reproduces a protected design. The test purchase also establishes the channel through which the infringing goods are being sold, providing evidence for the claim.

Witness statements and expert evidence

The investigator provides a witness statement setting out how the evidence was gathered, preserved, and analysed. For complex cases, such as disputes over whether a design is sufficiently similar to constitute infringement, expert evidence may be required. Brand authentication experts can confirm whether goods are genuine or counterfeit. Design experts can assess the degree of similarity between the claimant’s and defendant’s designs.

Enforcement options

Cease and desist letters

A letter from the rights holder’s solicitor identifying the infringement and demanding that it cease is often the first step. Many infringers, particularly those who did not realise they were infringing, will comply with a well-drafted cease and desist letter without the need for court proceedings. The letter should be specific about the right being infringed, the infringing conduct, and the consequences of non-compliance.

Platform takedown notices

Online marketplaces and hosting providers operate notice-and-takedown procedures. The rights holder submits a takedown notice identifying the infringing listing or content, and the platform removes it. Amazon, eBay, Etsy, and most social media platforms have IP infringement reporting tools. Takedown notices are cheap and fast, but they address individual listings rather than the original source of infringing goods.

Civil proceedings

If the infringer does not comply with a cease and desist letter, or if the infringement is too serious for informal resolution, civil proceedings in the Intellectual Property Enterprise Court (IPEC) or the High Court are available. Remedies include injunctions (preventing further infringement), damages or account of profits, delivery up or destruction of infringing goods, and orders requiring the defendant to disclose the source and distribution chain for infringing goods.

IPEC was established specifically for lower-value IP disputes and has a streamlined procedure with capped costs (£50,000 for liability, £25,000 for costs at time of writing). This makes court action accessible for small and medium-sized businesses that might not be able to afford High Court litigation.

Criminal prosecution

Trademark infringement is a criminal offence under section 92 of the Trade Marks Act 1994. Copyright infringement is a criminal offence under section 107 of the Copyright, Designs and Patents Act 1988. Criminal prosecution is pursued through trading standards authorities, the police (for large-scale counterfeiting operations), or private prosecution by the rights holder. Penalties include imprisonment (up to 10 years for trademark offences) and unlimited fines.

Costs and practical considerations

The cost of enforcement depends on the complexity and scale of the infringement. A cease and desist letter costs between £500 and £2,000 in solicitor’s fees. IPEC proceedings cost between £10,000 and £50,000 (with costs protection). High Court proceedings are more expensive but necessary for high-value or multi-party cases.

Investigation costs for evidence gathering typically range from £1,000 to £10,000 depending on the number of infringers, the channels involved, and whether the infringer’s identity needs to be traced. Test purchases, online monitoring, and market surveillance are the main cost components.

The return on enforcement depends on the damage the infringement is causing. If counterfeit goods are undercutting your prices and damaging your brand, the cost of stopping them is an investment in protecting your revenue and reputation. If the infringement is minor and the infringer is unlikely to repeat it, a cease and desist letter may be a proportionate response.

Working with UKPI

UKPI provides trademark and copyright infringement investigation services for rights holders across the UK. Our team gathers evidence through test purchases, online monitoring, market surveillance, and source tracing. We work alongside your solicitors to provide evidence that meets court standards and supports enforcement proceedings.

We also investigate evidence for passing off claims, design right infringement, and counterfeiting operations that involve supply chain investigation and international tracing.

If your trademarks or copyright are being infringed, call 0800 043 1754 for a confidential discussion, or contact us online. We will assess the scale of the problem and advise on the most suitable investigation and enforcement approach.

Protecting your rights before infringement occurs

Registration

Registering your trademarks provides statutory protection that is easier and cheaper to enforce than unregistered rights. UK trademark registration through the Intellectual Property Office costs from £170 (for a single class of goods or services) and provides 10 years of protection, renewable indefinitely. EU trademark registration through EUIPO provides protection across all EU member states. International registration through the Madrid Protocol extends protection to over 120 countries.

Copyright does not require registration in the UK – it arises automatically. But maintaining clear records of when works were created, by whom, and under what arrangements supports enforcement. If you commission creative work from freelancers or agencies, ensure that the contract assigns the copyright to your business. Without an assignment, the copyright may remain with the creator, leaving you with only a licence to use the work.

Monitoring and watch services

Trademark watch services monitor new trademark applications in your class and alert you to applications that are identical or confusingly similar to your registered mark. This allows you to oppose the application before it proceeds to registration. Online monitoring services scan marketplaces and websites for unauthorised use of your brand. Regular monitoring is cheaper than enforcement after infringement has become established.

Internal IP policies

Your employees and contractors should understand what intellectual property the business owns, what they can and cannot do with it, and what happens if they misuse it. Employment contracts should include IP assignment clauses and confidentiality obligations. Contractor agreements should specify who owns the IP created during the engagement. Leaving these matters to assumption is an invitation to disputes.