Patents, Trade Marks and Design Rights

Infringement litigation can be disruptive and expensive. The mere threat that a product infringes patent, trade mark or design rights may cause significant commercial damage to a business. But the law provides protection to businesses if that threat is groundless. The groundless threat provisions were introduced in the nineteenth century to resolve disputes about steam engines. The Commission believes that they need to be adapted to the new global battles over information technology and is consulting on how they can be brought up to date. The Commission is consulting on two approaches to reform. The first is to build on the reforms made to patent law in 2004 and to extend these to the other rights. The Commission also proposes that legal advisers should be protected from liability for groundless threats. The second approach is to treat groundless threats as a form of unfair competition and to introduce a new and broader cause of action based on the Paris Convention.