Anonymized Summary of Court of Appeal Decision

Factual and Procedural Background

Company A (the Appellant) is the registered proprietor of three United Kingdom trade marks identified in the opinion as numbers 3235344 ("344"), 3534551 ("551") and 3786148 ("148"), each registered in Class 34 in respect of electronic cigarettes and related goods. Company A acquired two of the marks from an employee and one from an unrelated party on the dates stated in the opinion.

Company B (the Respondent) is a rival supplier of vaping devices. Company B opposed the application for registration of mark 148 at the UK Intellectual Property Office and applied to revoke mark 344 for five years' non-use. Company A issued proceedings alleging that Company B infringed 344 (and later 551 and, once registered, 148) and sent letters to certain distributors/retailers/wholesalers ("the Recipients") asserting infringement and, in December 2024, making threats of trade mark infringement proceedings relating to 344 and 148.

Company B applied on 21 January 2025 for an interim injunction to restrain Company A from making threats of trade mark infringement proceedings. Miles J (Judge Miles) granted an interim injunction by order of 27 May 2025 restraining such threats for reasons given in his judgment dated 21 May 2025. Company A appealed to the Court of Appeal, which heard the appeal and handed down judgment on 8 May 2026.

The substantive claim and counterclaim (including revocation and invalidity challenges) were listed for trial in March 2027; interim relief was decided on an application heard on 30 April–1 May 2025.

Legal Issues Presented

1. Whether section 12(3) of the Human Rights Act 1998 requires an applicant for interim relief restraining publication (including threats) to show that it is "more likely than not" to succeed at trial, or whether a lower merits threshold may apply in the context of alleged unjustified threats;
2. Whether the judge erred in failing to take into account that, if the threats concerning mark 148 were justified, threats concerning marks 344 or 551 would be rendered inconsequential.

Arguments of the Parties

Appellant's Arguments

• Company A contended that the interim relief application under section 12(3) had been misapplied by the judge and that the correct threshold was that the applicant must be "more likely than not" to succeed at trial.
• Company A explained that the December 2024 letters were the only threats sent and declined to give an undertaking not to send further letters because it might discover additional distributors/retailers it wished to pursue.

Respondent's Arguments

• Company B argued that its application for an injunction to restrain unjustified threats was an important remedy and relied on serious attacks to the validity of the registered marks (including revocation for non-use and invalidity grounds under the Trade Marks Act 1994) such that there were substantial merits in its favour.
• Company B submitted that the potential adverse consequences of not granting an injunction (loss of customers and difficulty in assessing damages) justified applying a lower merits threshold under section 12(3). It also argued that the interference with freedom of expression was limited in this context.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Cream Holdings Ltd v Bannerjee [2004] UKHL 44, [2005] 1 AC 253	Construction of section 12(3) HRA: general rule that applicant for interim restraint should probably ('more likely than not') succeed at trial, but with recognised exceptions where a lower threshold may suffice.	The court held that the general rule in Cream Holdings applies to injunctions restraining unjustified threats and that the judge below erred in applying a lower threshold where no exception justified doing so.
Boehringer Ingelheim Ltd v Vetplus Ltd [2007] EWCA Civ 583, [2006] Bus LR 1456	Application of Cream Holdings principles in a trade mark/contextual setting.	The court treated the principles applied in Vetplus as applicable to the present trade mark threats context and adopted the general rule from Cream Holdings.
American Cyanamid Co v Ethicon Ltd [1975] AC 396	General approach to interim injunctions and the caution against converting interim applications into mini-trials.	The court rejected the submission that Cream Holdings' merits threshold undermines the American Cyanamid approach, holding that merits assessment under section 12(3) is required but should be conducted proportionately.
[2025] EWHC 1239 (Ch)	High Court judgment (Miles J) granting the interim injunction restraining threats of trade mark proceedings.	The Court of Appeal analysed and concluded that the High Court judge had applied a lower merits threshold than required by section 12(3) as interpreted in Cream Holdings, and thus had erred.
[2025] EWHC 1629 (Ch)	Deputy High Court Judge's judgment dismissing an appeal from the UKIPO decision rejecting opposition to registration of mark 148.	The decision formed part of the factual/matrix background; the Court of Appeal noted the outcome but did not rest its decision on creating new law from that judgment.

Court's Reasoning and Analysis

The panel (Judge Arnold delivering the lead judgment, with Judges Laing and Warby agreeing) began by identifying that section 12(3) HRA governs relief that may affect freedom of expression and that Cream Holdings supplies the interpretive framework: the general threshold is that an applicant must be "more likely than not" to succeed at trial, though limited exceptions exist where a lower threshold may be appropriate (for example, where the adverse consequences of not granting relief are particularly grave).

The court accepted that the Cream principles apply equally to applications for injunctions restraining allegedly unjustified threats under the unjustified threats statutory regime. It rejected the Respondent's submission that the threshold should be qualified in this context because such injunctions constitute a limited interference with Article 10 rights.

The court analysed the judge's reasons and concluded that the judge below had applied a lower merits threshold than "more likely than not" when assessing the prospects of success under section 12(3). The judge had described Company B's prospects as "sufficiently favourable" without finding that Company B was more likely than not to succeed, and had not found that the case fell within an exception to the general rule (for example, that the adverse consequences of not granting the injunction would be particularly grave).

The court also addressed case-management concerns and the risk of turning interim applications into mini-trials, holding that section 12(3) requires a merits assessment based on the available evidence but that such assessment must be proportionate; the present decision did not involve an impermissible mini-trial.

Because the judge had not found that Company B was more likely than not to succeed and had not identified an exception permitting a lower threshold, the Court of Appeal concluded that the injunction should not have been granted.

Holding and Implications

INJUNCTION SET ASIDE

Result: The Court of Appeal allowed the appeal and set aside the interim injunction granted by the High Court restraining threats of trade mark infringement proceedings.

Direct consequences: The interim restraint against Company A making threats was removed; the substantive proceedings (including revocation and invalidity challenges) remain to be tried as scheduled.

This summary does not identify any broader novel legal principle being established beyond the application of the established Cream Holdings framework to unjustified threats applications; the decision's immediate effect is the withdrawal of the interim injunction in the specific circumstances of this case.