In our last note, we had explained that in certain scenarios, copyright may not subsist in furniture design. What happens if you send out a letter alleging copyright infringement where in reality copyright does not subsist?

Consider this scenario: you have found an exact replica of one of your designs and you know who the ‘culprit’ is. You write a stern email to them demanding that they stop all infringing acts or else you will take the appropriate legal action. You may sound serious in your email, but your intention is to issue a warning to scare the ‘culprit’ off, and not actually commence a legal suit. What can go wrong?

Under Singapore copyright law, a recipient of a groundless threat of copyright infringement proceedings may bring legal action against the issuer of the threat. This is regardless of whether the issuer of the threat actually intended to commence a legal suit or not. Note that a threat is not limited to a written letter or an email, and can include other means such as circulars or advertisements.

For instance, if the ‘culprit’ knows that more than 50 three-dimensional reproductions of your artistic works have been made, your artistic work will no longer enjoy copyright protection, which means that your email may amount to a ‘a groundless threat of copyright infringement proceedings’.

There are also instances where some think that they can avoid liability for making groundless threats of copyright infringement proceedings by asking someone else to make the threat instead. This is not true – a recipient of a groundless threat of copyright infringement proceedings may bring legal action against the issuer of the threat even if the issuer of the threat is not the copyright owner.

It is therefore important for all copyright owners to seek appropriate legal advice as to the existence and strengths of their potential infringement claim before issuing demand letters.  

Lawyers Nicholas Lauw (Partner) and Leow Jiamin (Associate) are from Rajah & Tann Singapore – a branch of Rajah & Tann Asia, which has a presence in ten countries around Asia. They handle both contentious and non-contentious intellectual property, technology and regulatory matters for a wide range of clients. Jiamin participated in the Launch Pad Asia 2018 Mentoring Workshop for emerging designers, which was held at Schiavello Singapore in May.