This note looks briefly at groundless threats in relation to unregistered design rights.
Unregistered design rights as with many other forms of intellctual property are subject to what is known as groundless threats. As a very basic overview unregistered design righs (UK) protect designs of a functionall nature and those without aesthetic qualities.
Where the owner of an unregistered design threatens to commence proceedings against a person for infringement of that design then the person threatened may bring proceedings for:
a) a declaration that the threats are unjustifiable;
b) an injunctiion against any coontinuance of the threats; and
c) damages for any loss caused by the threats (s 253(1)).
The main defence to groundless threats procedures is for the owner of the design to show that the acts (or feared acts) actually were an infringement (s 253(2)). As a result of this rule it is particularly important to take advice over any cease and desist letters that you send. One option would be to merely notify a potential defendant that a design is protected by unregistered design rights (s 253(4)).