Threats in Design Law, the Objective Test

A threat is to be tested objectively and is made if what is communicated is understood by the ordinary recipient as being a threat of infringement proceedings (Brain v Ingledew Brown Bennington & Garrett (No.3) [1997] FSR 511). A threat may be made orally or in writing and it can be express as well as implied. (Bowden Controls Ltd v Acco Cable Controls Ltd [1990] RPC 427, a patent case, which was approved by the Court of Appeal in Scandecor Development Aktiebolag v Scandecor Marketing Aktiebolag [1990] RPC 427, a trade mark case). It must be read in the context of the correspondence or series of communications as a whole. A document which is not threatening in isolation may well be threatening when read in context (Brain v Ingledew (No. 3)). However, when a threat has been made in a letter, it is not possible to re-construe the letter in the light of subsequent correspondence so that it no longer constitutes a threat (Prince v Prince). The meaning of an actionable threat was considered by the High Court in the context of the Community Design Regulations 2005 in Quads4Kids v Colin Campbell). The judge held that the design owner’s use of a system which allowed the owner to assert his ownership of intellectual property rights, and led to the removal of a seller’s listing from a website, amounted to an arguable actionable threat under the Community Design Regulations 2005.

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