The Intellectual Property (Unjustified Threats) Act 2017 came into force on 1 October 2017. Whilst the revisions are 'evolutionary,' rather than 'revolutionary', it is now much easier for trade mark and design rights holders to correspond with infringers without being at risk of a claim for groundless threats of proceedings. In particular, the new regime:
- introduces a new statutory two-part test for a groundless threat, based on the threat being about acts done or to be done in the UK
- aligns the threats regime across the relevant IP rights, for example, allowing trade mark and design owners to challenge primary actors about their primary and secondary acts of infringement (in respect of the same goods)
- provides guidance as to permitted 'safe harbour' communications with secondary infringers (e.g. retailers)
- introduces a defence where the right holder has taken 'reasonable steps' to discover the identity of the primary infringer
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