The Law Commission has launched a consultation on changes to the regulations which look at the making of groundless threats when seeking to enforce intellectual property rights (IPR).
Under the current rules, someone who has been threatened with legal action for alleged infringement of patent, trade mark or design rights can apply to the courts for an injunction, declaration or damages against their accuser – if that accuser has made a “groundless threat”. A groundless threat is commonly a ‘casual’ threat of litigation when there is no genuine intention to litigate or where no infringement has actually taken place.
Whilst the intention was to enable IPR owners legitimately to defend and protect their rights, the present regime (especially under Trade Marks legislation) might – ironically – have encouraged litigation rather than engagement in negotiation or dispute resolution in the first instance, which is what the Courts would like to see.
Furthermore, the Law Commission is considering creating a new “statutory claim” of making false or misleading claims regarding trade mark, patent or design right infringement, which would provide protection against unfair competition.
Interested parties have until 17th July 2013 to comment on the proposals.