Unjustified threats or freedom of expression?

The High Court grants an interim injunction in the context of an unjustified threats action and highlights the critical balance rights holders must maintain when it comes to enforcement.

One of the more unique aspects of IP law in the UK is that unjustified or groundless threats are actionable in certain circumstances and a recipient of a threat can take action. The idea behind the provisions is to encourage responsible enforcement and protect supply chains, particularly when it comes to downstream businesses where the threat should be aimed at the source of infringement.

The recent case of Bargain Busting Ltd v Shenzhen SKE Technology Co Ltd [2025] EWHC 1239 (Ch) saw the High Court grant an interim injunction and highlights the critical balance rights holders must maintain when it comes to enforcement.

Background

Bargain Busting Limited (BB) and Shenzhen SKE Technology Co. Ltd (along with its UK subsidiary, together SKE) both asserted rights in the brand name CRYSTAL for vapes. They were involved in various UK IPO and High Court disputes alleging trade mark infringement, invalidity, bad faith and passing off.

BB wrote to eleven of SKE’s distributors and retailers alleging that distribution and sale of SKE products amounted to infringement of its trade marks and stating that it would initiate infringement proceedings unless they ceased sales. BB then included four of these parties in its infringement action as defendants.

SKE alleged that BB’s communications with its distributors and retailers constituted actionable unjustified threats and sought an interim injunction against BB.
SKE alleged that the letters intended to exert commercial pressure and disrupt its supply chain, particularly given their timing (before Christmas) and the short compliance deadline given by BB. SKE argued that including four suppliers in the proceedings was the kind of conduct the unjustified threats provisions were designed to prevent.

BB argued that its threats were justified, and therefore not actionable. It claimed it could seek damages from primary and secondary infringers, particularly if the primary infringer (SKE) was unable to satisfy a judgment. It had named four of those defendants to keep litigation manageable but reserved its rights against the remaining seven.

BB also maintained than an injunction would interfere with its right to freedom of expression under the Human Rights Act (HRA) and required SKE to prove a likelihood of winning at trial. SKE disagreed with the legal test to be applied and argued that BB’s freedom of expression was only slightly restricted in this context.

The decision

The Court first examined the freedom of expression argument, noting that an applicant’s likelihood of success at trial must be considered when deciding whether to grant an interim order. Generally, such orders should only be made if the applicant’s prospects of success are ‘sufficiently favourable’ (i.e. more likely than not), although this depended on the circumstances.

Injunctions regarding allegedly unjustified threats typically fall within the ‘exceptional’ category of cases, warranting a flexible interpretation of the likelihood of success test: a ‘more likely than not’ threshold was too high and would undermine the protection intended by the unjustified threats provisions.
In deciding to grant an injunction, the Court was satisfied that there was a serious issue to be tried (including the question of whether BB’s trade marks were valid) and that SKE had presented a sufficiently strong case. However, the precise terms of the injunction were narrowed, for instance to specific customers, threatening primary infringing activities and certain permitted communications.

Comments

Unjustified threats provisions protect against commercial coercion while allowing trade mark owners to assert their rights. This case underscores the delicate balance between enforcing intellectual property rights and preventing disruptive litigation tactics. Freedom of expression did not save the day.

It also confirms that when it comes to seeking an interim injunction under the threats provisions, applicants need only show that there is a serious issue to be tried, not that they are likely to succeed at trial. It also shows the Court’s readiness to scrutinise the motives behind pre-action threats and to intervene to prevent commercial harm.

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