David Hertzell & Julia Jarzabkowski aim to fend off groundless IP threats
Intellectual property rights are valuable and support economic growth by encouraging and rewarding innovation. For many businesses, patents, trade marks and design rights can be among their most important assets. Their worth, however, is undermined through unauthorised use and so a robust response to infringement makes good business sense. But threats to sue can be misused. A threat may be made, not with the intention of protecting an IP right, but as a means to damage a competitor.
Threats of infringement proceedings have a pernicious effect because IP litigation can be complex, disruptive and expensive, as the global battle between Apple and Samsung confirms. If a threat is made to the trade source of an infringement, such as a manufacturer or importer, they may be more likely to stand their ground as they may have more invested in the product or process. That isn’t the case with retailers or customers. If threatened, the mere prospect of litigation can be enough to change their buying habits and they may look elsewhere for a substitute.
