Posted on Wednesday 18 October 2017 by Cruickshank Intellectual Property
October the 1st, saw the introduction of new reforms to EU Trade Marks, on this same day The Intellectual Property (Unjustified Threats) Act 2017 came into force in the UK. This new act carries with it several changes to the existing laws and provides a clearer understanding of what constitutes as groundless threats.
Prior to the introduction of this new act, the previous law appeared complex and carried with it difficulties for those wishing to defend their IP rights in the UK. Practices and procedures in relation to unjustified threats in the UK were inconsistent and differed somewhat in relation to Patent, Trade Mark or Design rights. This new act attempts to harmonise its position between each of the Intellectual Property (IP) rights. Furthermore, the provisions put in place will also apply to unitary patents which will come into effect following the long-awaited introduction of the Unified Patent Court (UPC), of which there is still no date for commencement following various delays over the last few months.
What does this mean?
This new Act will provide statutory guidelines on what constitutes a threat. In short it introduces ‘Permitted Communications’ or ‘Safe Harbour’ which essentially allows IP owners to inform a potential (secondary) infringer of their rights without it being perceived as an ‘actionable threat.’ The threat test will be modified in terms of determining if communication relates to that of a ‘threat’ and professional IP advisors will not be liable for ‘unjustified threats’ once they communicate they are acting on a professional basis and at the instruction of their client.
These new changes will no doubt provide clarity and better understanding to IP rights holders and allow a better framework when dealing with the issue of IP infringement in the UK marketplace.
However, careful consideration should still be given when dealing with such issues and professional advice should be acquired before communications with a possible infringer.
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