Master the art of using crossclaims in IP litigation—from shifting liability to protecting your business from costly infringement disputes.
Intellectual property (IP) disputes are rarely simple. They often involve multiple parties, overlapping rights, and complex agreements. Whether it's a patent, trademark, copyright, or trade secret, crossclaims are an essential litigation tool when defendants need to shift liability or enforce legal obligations among co-defendants.
In this guide, we break down when and how to draft effective crossclaims in IP cases.
A crossclaim is a claim made by one defendant against another defendant in the same lawsuit. It allows a party to:
Shift liability for infringement
Assert ownership rights
Enforce contractual obligations such as licensing or indemnification
Example: A company sued for copyright infringement may crossclaim against a distributor who supplied the infringing content, alleging breach of their licensing agreement.
Use a crossclaim when another party in the lawsuit contributed to or caused the alleged infringement.
Patent cases: Shift liability to a supplier or manufacturer
Trademark cases: Hold a co-defendant responsible for product packaging or branding errors
Disputes over who owns a patent or trademark can lead to crossclaims to clarify rights or challenge validity.
Assert invalidity
Seek declaratory judgment on ownership
Crossclaims are valuable for enforcing IP licensing or indemnity clauses.
Failure to maintain IP rights
Breach of IP licensing terms
If another party contributed to the infringement (e.g., a subcontractor), file a crossclaim for contribution or indemnity.
State whether the claim involves breach of contract, indemnity, contribution, or direct infringement
Cite the relevant statute or agreement
Timeline of events
Specific acts of the co-defendant
Documents supporting the claim (e.g., license agreements, communications)
Example: "Defendant B failed to label the product with the licensed trademark as required under Section 3 of the agreement."
Indemnification
Reimbursement of litigation costs
Declaratory relief
Injunctive relief against co-defendant actions
Confirm the court has jurisdiction over the crossclaim and the parties
Lack of Jurisdiction: Especially common when foreign suppliers or co-defendants are involved
Failure to State a Claim: Vague or unsupported crossclaims are easy targets for dismissal
Statute of Limitations: Ensure timely filing
Failure to Join Necessary Parties: Some claims may require inclusion of third parties not currently in the lawsuit
Be Specific: Courts require more than vague assertions—lay out your evidence and legal theory clearly.
Think Strategically: Use crossclaims to gain leverage in settlement or reduce liability exposure.
Document Everything: Contracts, product specs, and communications are key.
Align with Defense Strategy: Crossclaims should complement your main defense, not distract from it.
Crossclaims are a powerful mechanism for managing risk and asserting your rights in intellectual property cases. Whether you're seeking indemnity, clarifying ownership, or addressing contractual breaches, well-drafted crossclaims can tip the scales in your favor. In complex IP litigation, every move counts—and crossclaims help ensure yours is a strategic one.
Need help drafting or defending crossclaims in your IP case?
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