The rationale behind threats provisions.
For me the rationale for having a right to bring a civil claim against someone who writes a letter before action is not clear. And it becomes less clear when you realise that it may apply to one category of IP right, but not another. Why is there no basis for complaint if the threat is for passing off, but there is if it is trade mark infringement? It might be said that the official grant of a near monopoly, in the form of a trade mark registration, brings with it a requirement not to abuse the right by being heavy handed in asserting the right against others. But in that case why is there a threat’s provision for unregistered design right? And if it is appropriate for that category of unregistered right, why is it not available for copyright?
The threat provisions are especially protective of those who find themselves in possession of an allegedly infringing product, whether for their own use or for onward sale, but who have not manufactured or imported the product in question – see Summary of Threats Provisions. It is evidently considered to be in order to communicate a threat to someone who introduces the infringement onto the market (the manufacturer or importer of goods or the originator of a service) but not appropriate to attack those further down the chain of distribution. The rationale here seems more clear – if you have a complaint then you should attack the one who originated the infringement and who has the greater commercial interest in defending himself, rather than (to take an extreme example) the corner shop retailers who will not have the resources or motivation to defend themselves.