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Shenzhen Carku v NOCO UK Court of Appeal ruling: Jeremy Hertzog and Eleanor Wilson comment for WIPR

Posted on 28 December 2023

Partner and Chair of Innovation Jeremy Hertzog and Associate Eleanor Wilson have been quoted in a World Intellectual Property Review piece analysing a patent dispute between US and Chinese lithium-ion battery manufacturers, Noco and Carku.

The ruling raises interesting points around Amazon's Intellectual Property infringement notification framework, which Jeremy and Eleanor discuss in full below.

Eleanor commented: "The Court of Appeal's decision in NOCO v Carku EWCA Civ 1502 [2023] upheld the Patents Court finding that notifications to Amazon sent using its IP infringement notification system could be threats of IP litigation, and so fell within the unjustified threats statutory regime. This regime enables those aggrieved by unjustified threats of IP litigation to seek legal remedies, provided that certain conditions are satisfied. Whereas the lower court distinguished between communications to Amazon which it found to be threats as against distributors on the platform, and threats to Amazon itself, the Court of Appeal found that who the target of the threat is does not make a difference: the threat has "causative potency" either way."

Jeremy commented: "Whilst rights holders must therefore take the threats regime into account when considering whether to issue takedown notices to online platforms, the Court of Appeal did also highlight that not all communications sent using Amazon's notification forms would constitute threats. Its boilerplate form did invite the provision of neutral information, which is allowed under the unjustified threats rules, provided that such communications are not accompanied by express threats or sent for purposes which are not permitted, such as cease & desist demands. Businesses using the Amazon notification system (or any similar system) to assert their intellectual property rights should seek advice to avoid risking liability for inadvertently making unjustified threats to sue."

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