A single word in Law Commission proposals on changing the law to protect solicitors taking action against infringements could cause ‘unwelcome’ and ‘unnecessary’ complications, the Law Society has said.
The Law Commission last month published a draft bill that would implement recommendations made last year to reform ‘complex and inconsistent’ patent, trademark and design law.
This followed a lengthy campaign by the Society for reform of ‘unwieldy and disparate’ legal rules relating to unjustified threats.
Responding to a discussion paper on the commission’s proposed reforms this week, the Society said it welcomed the general approach to reform in the draft bill but was ‘concerned’ over the wording of proposals in relation to ‘permitted communications’ about alleged infringements.
Subsection 70B(1)(a) of the bill states that a communication containing a threat of infringement proceedings is a ‘permitted communication’ if ‘the communication, so far as it contains information that relates to the threat, is made solely for a permitted purpose’.
The Society said the use of the word ‘solely’ could be ‘interpreted as introducing a new requirement of examining a writer’s subject intent in sending a communication’.
Under present law, a rights holder can send a ‘mere notification’ letter and, provided it does nothing more, the letter cannot be a groundless threat.
‘All that matters is an objective reading of the letter,’ the Society said. ‘The sender’s motives (which in many cases will be mixed) are irrelevant.
‘To change the law so that a sender’s motives are considered would add an unwelcome and unnecessary complication to the law. This is particularly so given that the possibilities for abuse are limited by the bill’s requirement that permitted communications only include information that is necessary for the permitted purpose.’
The Society suggested the word ‘solely’ be removed from the clause.