What Can Go Wrong If You Send a copyright or trade mark threat and not use a lawyer?

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What Can Go Wrong If You Send a copyright or trade mark threat and not use a lawyer?

It’s only natural to feel wronged when you notice another business using a name strikingly similar to yours, mimicking your logo, or selling products that look a lot like your own. Maybe you come across a website or Instagram account that’s borrowing your branding, or you hear from a customer that your artwork has popped up in someone else’s range.

That gut reaction—wanting to defend your intellectual property and set the record straight—is entirely justified.

But hitting send on a legal threat without stopping to check the details is risky. IP laws are complicated: not every lookalike is an infringement, and sometimes your own rights may not be as clear-cut as they seem.

Sending a strong letter without legal advice could land you in hot water—if your threat isn’t backed by a solid, enforceable right, you could end up facing claims of making an unjustified threat yourself. That’s why it’s always wiser to talk to a lawyer first; they’ll assess your rights, the actual legal position, and help you address concerns in a way that protects your interests—without turning your frustration into a bigger legal problem.

When Legal Letters Backfire

If you’ve ever been on either side of a legal spat over IP—whether trademarks, copyright, or patents—you’ve probably considered sending, or received, a strongly worded letter. But did you know that under Australian law, making the wrong kind of threat could land you in hot water? “Unjustified threats” claims are a real risk for businesses and creatives seeking to enforce their rights or defend their brands.

Avoiding “Unjustified Threats” in Australian IP Law

So what is an unjustified threat—and how do you avoid accidentally making one?

However, what the law does not allow is issuing threats of legal action when there’s no solid legal basis to back them up. Australian law protects not just creativity, but fair play. Laws like the Trade Marks Act, Copyright Act, Patents Act and Designs Act all give a person on the receiving end of a groundless or unfair IP threat the right to fight back and seek a remedy from the court.

The reasoning is simple: legal threats can be intimidating and might put unnecessary pressure on smaller businesses or individuals to give in—even if they haven’t actually broken the law. By letting people challenge unjustified threats, the law makes sure IP rights aren’t used as a weapon to stifle healthy competition, innovation, or free speech. It keeps the playing field fair for everyone, ensuring rights holders don’t overreach and that creative life in Australia stays dynamic, competitive and just.

What counts as a threat?

A letter or email warning someone to stop using a name/logo—a classic lawyer’s staple.

A face-to-face demand, waving around a patent certificate and telling a shop owner to pull products off their shelves.

Even public statements or warnings about legal action.

It’s not about how you felt—if a reasonable person would see the message as a prelude to litigation, it’s a threat.

A letter or email telling someone to stop using a name or logo, a face-to-face demand, or even public warnings about legal action can all be seen as legal threats. It doesn’t matter what you meant—if a reasonable person would think you’re gearing up for a lawsuit, it could count as a threat.

The law looks at how your message would be received, not just what you intended.

Lessons from Real Cases

In one reported case, a business owner sent legal warnings about alleged patent infringement not just to their competitor, but also to everyone along that competitor’s supply chain. The letters warned of imminent action over so-called “infringing widgets.” When it turned out the patent couldn’t be enforced, the people who received those threatening letters took the sender to court for making unjustified threats—and they won compensation.

There’s even been a copyright matter where a film’s release was allegedly blocked by legal threats that turned out to be without basis. In that scenario, the court treated the overreaching legal warnings as unjustified, recognising the significant impact such threats can have, including lost opportunities or cancellations.

Cases like these show just how cautious you need to be before threatening legal action over IP rights.

Courts look at substance, not spin. Calling a letter a “courtesy update” won’t save you if it reads like you’re itching to sue.

What Makes a Threat “Unjustified”?

A threat is “unjustified” when the sender can’t prove a real, enforceable legal right was infringed.

No trade mark registration? Threatening a trade mark action is unjustified.

No copyright, or not original? Threatening a claim is unjustified.

The Cost of Getting It Wrong – use a lawyer!

If you make an unjustified threat, you could face serious consequences—a court might declare your threat was baseless, order you to stop making similar threats in future, and even require you to pay damages if the other party lost business or suffered losses as a result.

Courts are looking for clear proof that your threat actually caused the harm, so if a loss can be chalked up to market trends or unrelated factors, your risk may be lower—but aggressive or careless legal threats still pose big risks for your reputation and your pocket.

FAQs

1. What exactly counts as an unjustified threat in IP law?
Any communication that a reasonable person would see as a threat of legal action—if that action wouldn’t actually be justified!

2. Can I still let someone know I have IP rights?
Belief alone isn’t enough.

3. What if I genuinely believe I’m right?
You’re still protected by Australian Consumer Law. Unfair or misleading contract terms can be challenged.

4. Does this apply to registered trademarks only?
Unjustified threats can relate to patents, designs, copyright, and trade marks.

Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.