Cloud Control – Does the prevention of unjustified threats of infringement restrict Freedom of Expression?

In Bargain Busting Ltd v Shenzhen SKE Technology Co Ltd [2025] EWHC 1239 (Ch), the High Court provided important clarification on the extent to which one’s right to “freedom of expression” can impact legal restrictions on unjustified threats of registered trade mark infringement.

The Court held that s.12(3) Human Rights Act could not be relied upon to resist an interim junction preventing future threats of infringement. It also confirmed that the current unjustified threats legislation fairly balances a party’s right to expression with the protection of anyone affected by threats.

Background:

Shenzhen SKE Technology Co. Ltd (“SKE”) manufactures and sells a range of e-cigarettes and vaping devices in the UK, under the brand names “CRYSTAL BAR” and other “CRYSTAL” prefixed marks.  Bargain Busting LTD (“BB”) owns registered UK trade marks for “CRYSTAL CLEAR VAPOURS ELECTRONICS CIGARETTES” and “CRYSTAL ADDICT”.

In September 2024, BB commenced proceedings for registered trade mark infringement against SKE. Subsequently, in October 2024, BB sent letters to a selection of third party distributors/retailers of SKE’s products, to notify them of the existence of their registered trade marks. These letters were very limited in scope, and considered by all parties to be “permitted communications” under s.21B Trade Marks Act 1994 (“TMA”).

However, on 23rd and 24th December, BB sent letters to a further eleven distributors/retailers.  These letters went much further than their previous communications, stating that “the distribution and sale of the identified SKE goods amounted or would amount to an infringement” of BB’s registrations. The letters also contained a request for undertakings from each recipient that they would cease distributing or selling SKE’S products. In lieu of such undertakings, BB stated it would commence trade mark infringement proceedings.

In March 2025, BB applied to join four of the eleven parties to the ongoing infringement proceedings, but took no action against the other seven recipients.

In light of this, SKE applied to Court for an interim injunction to prevent BB from making further threats of infringement to any of its distributors or retailers.

One of BB’s key arguments to resist the order was that the interim injunction would infringe upon its right to “freedom of expression”, meaning that s12(3) Human Rights Act (“HRA”) applied.  The section, in effect, prevents action such as an interim injunction being granted unless the applicant can show that it is “likely to establish that publication [i.e. in this case a threat] should not be allowed” at trial.  BB submitted this required SKE to show it would “more likely than not” succeed at trial, and that it had not met this required threshold.

Key Issue:

Does BB’s right to “freedom of expression” and thus s.12(3) HRA, prevent or impose a higher bar for an interim injunction being granted to prevent unjustified threats of trade mark infringement?

Outcome: 

The High Court held that s.12(3) HRA was not applicable to the case hand, and thus granted the interim injunction sought by SKE.

In its assessment, the High Court agreed with comments made in a prior case (Cream Holdings v Banerjee [2004] UKHL 44, [2005] 1 AC 253), where it was held that “…'likely' in section 12(3) cannot have been intended to mean 'more likely than not' in all situations..” and that “some flexibility is essential”.

As such, the High Court considered itself satisfied that SKE had demonstrated that its chances of succeeding at trial were “sufficiently favourable” to justify the interim injunction being granted.

Further, when it concerned the impact the interim injunction would have on BB’s right to “freedom of expression”, the High Court was satisfied that any such impact would be “very limited and proportionate and would represent an appropriate balance with the competing rights of SKE”, noting that “BB would still be able to impart information; what it would not be able to do is make further threats of proceedings”.

As it stands, this decision has the following implications:

1. S.12(3) Human Rights Act does not give parties free rein to make unjustified threats of infringement proceedings.
2. By its very nature, current unjustified threats legislation has already struck a fair balance between a party’s right to expression with the rights of another party affected by unjustified threats.
3. As always, registered trade mark holders must ensure they phrase any communications with third parties carefully to avoid action being taken against them under unjustified threats legislation.

Further developments

At the time of writing, we understand that the Court of Appeal has granted BB permission to appeal the High Court’s decision to grant the interim injunction. So watch this space!