In the recent landmark judgment in Bargain Busting Ltd v Shenzhen SKE Technology Co Ltd [2026], an appeal concerning trade mark infringement and pre-action correspondence in the context of electronic cigarettes, the Court of Appeal handed down its views on the interim injunction ordered against Bargain Busting by the Intellectual Property Enterprise Court (IPEC) to prevent it from sending cease-and-desist letters to Shenzhen SKE. The interim injunction was ordered on the pretence that the letters from Bargain Busting were unjustified threats.
The appeal itself was raised in relation to section 12(3) of the Human Rights Act 1998, stating that the relief sought under the Intellectual Property (Unjustified Threats) Act 2017 was in contravention with the ability to freely express oneself before trial without restraint. The main consideration for an interim injunction to be made is whether the party applying for the interim injunction to be ordered against the other party would have a “sufficiently favourable chance of success at trial”.
Ultimately, Arnold LJ found that the judge of first instance had erred in his finding to order the interim injunction, as he had not applied the principles set out by Lord Nicholls in the leading common law precedent for issues under section 12(3) of the Human Rights Act. Therefore, Bargain Busting’s appeal succeeded on this ground, with the Court not considering the second ground of appeal as a result. The case will now revert to IPEC, where it shall continue, if settlement is not imminent.
The decision is significant as it is the first time on record that the freedom of expression provision under the Human Rights Act 1998 has been considered in the context of an intellectual property dispute.
If you have any questions on the above, or if you need any advice or support in respect of your own intellectual property, please do not hesitate to contact the team at McDaniels Law on 0191 281 4000 or legal@mcdanielslaw.com.
