Responding to the UK government's review of the country's intellectual property laws last week, the Law Society warned that businesses should be alert to dangers in writing to competitors or retailers alleging misuse of their trademarks or designs.
Within the area of trademarks and designs are provisions which allow anyone 'aggrieved' by threats of infringement proceedings, even if only implicit, to bring legal proceedings against the sender of the letter or other person making the threat.
According to the Law Society, the rules, first introduced in the patent field in 1883, were later extended to cover registered designs, unregistered design right and trademarks, but they do not cover copyright or passing-off.
”The effect of the provisions encourages a ’sue-first, talk-later’ approach, which makes mediation redundant,” observed Law Society President Kevin Martin, continuing:
”The Society is calling for the existing regime to be abolished completely. The rules are counter-productive in that they force the issue of legal proceedings rather than encouraging dialogue and settlement.”
In 2004, Reckitt Benkiser and their solicitors were subject to High Court action for ’groundless threats’ after they brought an infringement claim in respect of designs for their Airwick air freshener.
Prince, the US-based tennis and sports equipment group, were also confronted with claims against them after they complained of trademark infringement when a UK software company registered the domain name prince.com.
Kevin Martin concluded:
”The structures of the threats provisions mean that solicitors are often forced to write letters before action referring only to copyright or passing-off but knowing full well that, on issue, the claim will be principally based on design or trademark infringement.”
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