IP Matters — winter 2014: unjustified threats of patent infringement — where next?
By Patrick Wheeler
The UK laws relating to unjustified threats of infringement of patents, trademarks and designs have proved a minefield for rights owners and legal advisers alike. The Civil Procedure Rules set an expectation that parties to a dispute will set out details of their claim and defence before starting court proceedings, but an ill-considered letter before action alleging infringement of these rights can result instead in a claim of unjustified threats being made by the party that is accused of infringement.
The underlying policy appears to be that the owner of a registered intellectual property (IP) right or unregistered design is entitled to threaten proceedings for infringement against primary infringers (such as manufacturers or principal importers), but threats of infringement being made against those further down the supply chain are to be discouraged.
This is to prevent an IP rights holder from causing major disruption to the business of a competitor by threatening a retailer of an alleged infringing product, knowing that the retailer is likely to contact the manufacturer or main importer and say that it does not wish to be involved in an IP dispute and so it is likely to seek to return the goods to the original supplier…
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