When a threat, even a veiled threat, is made to bring a claim against another company for infringing intellectual property rights, the result of the mere threat may be to cause damage to the threatened company. It may, for example, cease selling or making the item that allegedly infringes the patent and suffer commercial loss through inability to fulfil contracts or make sales as a result.
If the allegation is unjustified, the person making the threat can face a claim by the threatened party for the damages suffered for their commercial loss and legal costs.
In a recent case concerning alleged infringement of a patent relating to a yellow pigment, a letter sent to the manufacturer of the pigment threatened to sue it and included the warning “you will not be interested in continuously effecting a patent infringement, which may involve the most serious penalties to the infringer and its customer’.
The court rejected the claim that the patent had been infringed and concluded that the threat contained in the letter was not justified. There was therefore an actionable right against the company that made the threat.
Before making any accusation or threatening any action against someone who you believe may have used your intellectual property rights, it is essential to take advice before making any accusations or demands. This applies not only to patent infringement but also to trade mark and design rights. Be warned – this is an area in which it is very easy for companies to shoot themselves in the foot!
We can advise you on any aspect of your commercial correspondence to help you avoid legal traps. For further information, please contact our Corporate and Commercial team on the number above or fill in our online enquiry form.
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