In many IP disputes, the possibility of seeking an interim interdict (the Scottish equivalent of a preliminary injunction) will be considered within the strategy.
Securing an early, interim interdict can be determinative of the overall dispute. If no caveat is lodged in the relevant court then the interim interdict may be granted without warning. If you are a rights holder it is important to know about how they work. If you are at risk of an interim interdict being granted against your company, it is arguably even more important that you know about caveats and have one lodged at the right time and court.
What are caveats?
A unique feature of litigation in Scotland is our use of letters of caveats (or warning letters). A party at risk of an interim interdict being sought against them in the Scottish Courts should lodge a caveat in each relevant court. The risk of not doing so, is that an interim interdict order may be granted against them without notice.
Something done much more commonly in Scotland than in other jurisdictions, including England and Wales. If a caveat has been lodged on behalf of the party alleged to have committed the wrong, the Scottish solicitor who has lodged that caveat will be notified of the application and will have an opportunity to oppose grant of interim interdict. If not, the application will go straight to consideration by a judge or sheriff.
Why do you need to know this?
If your company or a client is trading in physical stores or online across the UK and they are alleged to have infringed a trade mark, the Scottish Courts will have jurisdiction over them to grant an interim interdict. That order may well have effect across the UK. It may be granted without opposition.
What is new?
The Scottish Court Service have just launched an online portal for the registration of caveats SCTS invites takeup of new caveats portal | Law Society of Scotland (lawscot.org.uk). This is intended to streamline the process for lodging caveats and will allow us to lodge them more quickly in urgent cases.
Key take-away points on caveats:
- They are effective against any interim interdict application, they are not specific to a particular dispute;
- They last for a year after which they need to be renewed; and
- An application for a “search and seizure” order or an order to freeze assets does not trigger a caveat.
How can I find out more?
Further information on lodging caveats can be found here or please contact me or any of the team at Burness Paull. We look forward to hearing from you.
Written by
Related News, Insights & Events
Stop before you start(up): Have you considered your IP?
If you are in the process of or considering starting a business, be sure to not fall victim to the misconception that intellectual property (IP) is only a consideration for corporate giants.
Rocking the boat: WaterRower (UK) Limited v Liking Limited
The case of WaterRower Limited v Liking Limited.
Enforcing IPR in Scotland: 'Without prejudice' - not an open and closed case.
Despite IP law in Scotland largely mirroring that of the rest of the UK, there are differences
