Design Rights and Notification

The fact that notification of an IP right exists or is registered does not amount to a threat of proceedings. These provisions have been interpreted very narrowly by the courts; doing any more than sending, for example, a copy of the trade mark certificate and a covering letter drawing the recipient’s attention to it, could potentially take an IP owner out of the exceptions and amount to an implied threat. In Jaybream Ltd v Abru Aluminium Ltd [1975] FSR 597, the notification of a design registration in a letter which threatened proceedings for copyright infringement was held to be an actionable threat. The same could apply, if a letter threatening proceedings for passing off also notified the recipient of a trade mark registration. It seems that there is a fine line between a threat of proceedings and the mere notification of the existence of a design. Those wishing to take advantage of the provision should be careful not to fo further than what is permitted as a threat may well be inferred.

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