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Potential changes to intellectual property legislation

The Law Commission has launched a consultation on changes to the regulations surrounding groundless threats when looking to enforce intellectual property rights.

Under the current rules, it is possible for someone subject to threats of legal action for infringement of patent, trade mark or design rights without there being a genuine intention to litigate or where no infringement has actually taken place (so-called groundless threats) to apply to the courts for an injunction, declaration or damages.

However, no action can be brought against threats concerning acts of primary infringement, such as the manufacture of the offending product, and protection is provided for certain communications between right holders and retailers or customers (known as secondary infringers).

While these rules were clarified for patent rights holders in the 2004 reforms, the Law Commission is seeking to extend the same protection to the threats provisions for trade marks and design rights, and to provide security for legal advisers.

Furthermore, it is considering creating a new “statutory tort” of making false or misleading claims regarding trade mark, patent or design right infringement, which would provide protection against unfair competition.

Interested parties have until 17th July 2013 to comment on the proposals.