Firstly, the test for whether a communication contains a threat will effectively become “would a reasonable person, in the positon of a recipient of the communication understand it to mean that:
The last requirement has been added to ensure the threats provisions can now apply to EU Patents which fall within the scope of the all new Unitary Patent Court.
However, the main change, save the fact legal advisors cannot now also be held liable for unjustified threats along with clients, is the introduction of the legally defined ‘permitted communication’. In other words, this covers a situation where information in a communication amounts to an implied threat. Now, a threats action cannot be brought where the information was given for a “permitted purpose”, was necessary for that purpose and the person making the communication reasonably believed what is said is true. There is guidance on what is, or is not, a permitted purpose. For example, for trade marks:
(2) Each of the following is a “permitted purpose”—
(a) giving notice that a registered trade mark exists;
(b) discovering whether, or by whom, a registered trade mark has been infringed by an act mentioned in section 21A(2)(a), (b) or (c);
(c) giving notice that a person has a right in or under a registered trade mark, where another person’s awareness of the right is relevant to any proceedings that may be brought in respect of the registered trade mark.
However there is also a catch all in that the court has discretion to treat something as a permitted purpose if it is in the interests of justice to do so.
The above information does not provide a complete statement of the present law and you should always seek independent advice in relation to your own circumstances.
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