THREATS
be careful but not timid
The basic law on the issue of unjustified threats is straightforward:
An action may sometimes be brought against a third party for threatening to instigate IP infringement proceedings.
But whether the threat is actionable or not will depend on the category of IP right involved and the precise terms of the alleged threat.
There is a danger that litigators and their clients react to the first of those two bullets by avoiding any communication that could conceivably be construed as a threat. Or, worse still, they issue a mealy mouthed letter, which looks weak in the eyes of the recipient, but is still treated by the court as a threat.
These notes are intended to help with risk management in this area i.e. to help litigators to:
analyse the situation they face;
assess the risk of a communication being regarded as an actionable threat, in light of the defences available;
balance that risk against any advantage to be gained from issuing the threat:
give appropriate advice to the client; and then
settle on the precise terms of what is to be said or written to the suspected infringer.
The Notes cover:
Summary of Threats Law including:
The effect on the Client Relationship if a professional adviser is sued for threats.