Freedom of expression vs IP enforcement: a new balance?

The recent decision in Bargain Busting Ltd v Shenzhen SKE Technology Co Ltd & Ors [2025] EWHC 1239 (Ch) offers a rare and revealing look at the intersection of intellectual property enforcement and freedom of expression. At issue was whether a claimant’s communications to third-party distributors – alleging trade mark infringement – could be restrained by interim injunction, and whether that had to be tested against the high bar set by Section 12(3) of the Human Rights Act 1998 (HRA) which is designed to protect freedom of expression.

The court’s conclusion – that the HRA threshold did not apply because Parliament had already struck the relevant balance in section 21 of the Trade Marks Act 1994 (TMA) – is both novel and potentially far-reaching. This article explores the judgment’s reasoning, its doctrinal implications, and the practical consequences for rights holders and alleged infringers alike.

The facts in brief

The Claimant, Bargain Busting, had sent letters to third-party distributors of the First Defendant’s vaping products, asserting that those products infringed its registered trade marks. The First Defendant, Shenzhen SKE, responded by seeking an interim injunction to restrain further threats, invoking Section 21 TMA, which prohibits unjustified threats of trade mark infringement proceedings.

The Claimant resisted the injunction on the basis that such a restraint would infringe its Article 10 rights under the European Convention on Human Rights, as incorporated by the HRA. Specifically, it argued that the Court could not grant an interim injunction unless the First Defendant was “likely to establish” at trial that publication should not be allowed – the elevated threshold set by Section 12(3) HRA.

The legal tension

At the heart of the dispute was a doctrinal tension between two statutory regimes:

• Section 21 TMA is broadly designed to prevent trade mark rights holders from using threats of litigation against distributors and traders in the primary infringer’s supply chain as a commercial weapon to choke off the primary infringers route to market.
• Section 12(3) HRA, by contrast, protects freedom of expression by requiring a high threshold to be satisfied before an interim injunction is granted which will have the effect of restraining free speech – the applicant for the interim injunction must show that it is “likely to establish” at a full trial that publication should not be allowed.

The question for the court was whether the section 12(3) threshold applied to an application for an interim injunction under section 21 TMA – and if not, what standard should govern.

The court’s reasoning

The court held that section 12(3) HRA did not apply in this context. The reasoning was striking: Parliament, in enacting section 21 TMA, had already undertaken the necessary balancing exercise between the competing rights of the parties. As such, the court was not required to superimpose the HRA’s elevated threshold on top of the TMA scheme.

Instead, the court applied the usual American Cyanamid principles for interim relief: whether there was a serious issue to be tried, whether damages would be an adequate remedy, and where the balance of convenience lay. On that basis, the court granted the interim injunction, restraining the Claimant from making further threats to third parties pending trial.

A doctrinal shift?

The court’s approach raises several important doctrinal questions:

1. Is parliamentary balancing a substitute for judicial balancing? The court’s reasoning suggests that where Parliament has enacted a statutory scheme that implicitly balances competing rights, the courts may decline to apply the HRA’s more stringent protections. This is a significant development, particularly in light of the courts’ usual reluctance to treat statutory rights as displacing Convention rights.
2. What counts as “publication” under Section 12 HRA? The judgment implicitly treats the Claimant’s letters to distributors as a form of “publication” for the purposes of Section 12 – but then declines to apply the Section’s protections. This raises questions about the scope of Section 12 and whether commercial communications should be treated as “expression” deserving of heightened protection.
3. Commercial speech and the hierarchy of expression: The decision reinforces the idea that commercial speech – particularly speech that takes the form of legal threats – may not attract the same level of protection as political or journalistic expression. This is consistent with Strasbourg jurisprudence, but it is rare to see it so clearly articulated in a domestic IP context.

Practical implications

The judgment has the following main consequences:

• Lower threshold for injunctions: Defendants facing aggressive enforcement tactics may now find it easier to obtain interim relief, without having to meet the high bar of section 12(3) HRA.
• Greater risk for rights holders: Brand owners must take greater care in how they communicate with third parties. Even well-founded allegations of infringement may be restrained if they fall foul of section 21 TMA.
• Strategic use of threats litigation: The case may encourage more defendants to use the unjustified threats regime proactively, particularly in fast-moving consumer goods sectors where third-party distribution is common.

Conclusion: a new balance?

Bargain Busting is a significant decision not because it breaks new ground in either IP or human rights law, but because it quietly redraws the boundary between them. By treating the TMA as a self-contained balancing regime, the court has signalled a willingness to defer to Parliament’s judgment in areas where rights are in tension.

Whether this approach will be followed in future cases remains to be seen. But for now, the message is clear: freedom of expression is not an unqualified shield, especially when deployed in the service of commercial enforcement.

The full decision is here.

With thanks to Elisheva Joshua, current trainee in the team, for her help in preparing this article.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, June 2025