Tone down your IP threats

A threat is quick, involves little effort, does not commit you to any form of action or expense, and generally is quite satisfying, especially if it is taken seriously. By the time the person being threatened realises that you are not going to take any further action, it may seem too late to do anything effective about it, especially if there is some justification, and they have sensibly kept their head down.

However, if you threaten to sue someone for infringement of your IPR, you may receive a counter threat of an Unjustified Threats Action, which can be just as satisfying and a useful response to rival businesses pushing their weight around. The person being threatened can go further and demand an undertaking to cease such threats.

Failing to provide the requested undertaking can result in an application to the court for an injunction to stop any further threats being issued, or for a declaration that the threats are not justified. This could be accompanied by a claim for damages, depending on how the threats were made, as business could have been lost.

Therefore, it is not a good idea to make threats in IP cases unless you are sure that you have the IPR referred to and are prepared to carry through and commence action without delay. Therefore, however incensed you are over the infringement of your IPR, you will find your lawyer proceeding cautiously to avoid an Unjustified Threats Action. Less fun, but safer. So if you receive a limp-wristed notification from a lawyer that you have infringed their client’s IP rights, it does not mean that they are not serious. It just means that they are being cautious. It could still be followed by a court action.


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