Getting it right: unjustified threats in intellectual property cases

Bargain Busting Ltd v Shenzhen SKE Technology Co Ltd [2026] EWCA Civ 532, which we have previously written about here, has put the spotlight back on unjustified threats claims in IP disputes. In this case, the Court of Appeal overturned the High Court’s grant of an interim injunction restraining threatening communications. 

This decision makes clear that an applicant seeking an interim injunction to prevent unjustified threats will be subject to the full force of the Article 10 freedom of expression safeguard under s12(3) of the Human Rights Act 1998. 

Applicants seeking to stop threats before trial must exceed a higher merits hurdle, namely that they are more likely than not to succeed, rather than merely showing a serious issue to be tried. Only if that threshold is met will the court go on to consider the factors in favour of granting the interim injunction and balance the parties’ competing rights including considering proportionality and whether narrower steps (for example, clarificatory letters or targeted undertakings) would suffice. 

In practice, this makes interim relief harder to obtain in unjustified threats cases and places greater emphasis on the strength of the underlying infringement case at an early stage.

However, rights holders must remain alert to the significant, and often underestimated, risks in making an unjustified threat. The unjustified threats regime can turn the tables: instead of being the claimant, the rights holder can find itself defending an unjustified threats claim or counterclaim.   

What is an unjustified threat?

Unjustified threats law is a statutory regime covering trade marks, patents and designs that restricts IP owners from making threats of infringement proceedings - particularly to secondary actors like retailers or distributors - unless those threats are justified based on the owner’s IP rights validly existing.  

The regime allows a “person aggrieved” to bring a claim and seek remedies including a declaration, damages and an injunction to restrain further threats. The aim is to prevent rights holders from achieving, through threatening correspondence, the same commercial effect as an injunction without having to prove infringement in court.  It is intended to strike a balance between enabling rights holders to enforce their IP rights, while preventing the misuse of threats that are intended to distort competition or intimidate supply‑chain actors. 

In practice, there is an important distinction between permissible and actionable communications. The law recognises that rights holders need to be able to make initial enquiries and put others on notice of their rights. As such, “permitted communications” allow parties to inform others that an IP right exists and to request information (for example, identifying a manufacturer or importer) without straying into an actionable threat. However, care is required to avoid making express threats of proceedings, demands to cease trading, or requests to destroy goods, without seeking legal advice first. 

Implications for businesses

Where infringement is suspected, it is important to seek early specialist advice to assess the merits of enforcement, taking into account commercial, financial and reputational considerations. Overzealous communications can give rise to liability under the unjustified threats regime. Ensuring pre-action correspondence is thought through and threats compliant is the key to reducing enforcement risk. However, it is not just cease and desist letters rights holders should be wary of. Unjustified threats law is increasingly being applied to digital enforcement tools, such as notifications and takedown requests. 

A party on the receiving end of an unjustified threat may have a powerful remedy. Early specialist advice, coordinated supply‑chain management, and a measured response are essential in preventing unnecessary commercial disruption.

Our team has the expertise to guide you through the complexities of both bringing and defending IP Infringement claims. For further information, please contact Emily Roberts or Holly Webb.

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