Decision: Bargain Busting v Shenzhen SKE Technology Company [2026] EWCA Civ 532
Court: Court of Appeal (Civil Division)
Judges: Arnold LJ; Laing LJ; Warby LJ
Decision: Here
Key issues:

• actionable threats
• interim injunctions
• Human Rights Act 1998

Published: 20 May 2026
Authors: Ellen Hughes-Jones

Introduction

How hard is it to stop a trade mark owner from writing to the market? In Bargain Busting v Shenzhen SKE Technology, the Court of Appeal set aside an interim injunction that had restrained Bargain Busting from making alleged actionable threats to Shenzhen SKE Technology Company’s (SKE) supply chain. The key reason: where an injunction would restrain speech before trial, section 12(3) of the Human Rights Act 1998 applies a heightened merits threshold and the first‑instance judge had not applied it.

Background

Bargain Busting owns UK trade marks including CRYSTAL BAR, CRYSTAL CLEAR VAPOURS ELECTRONICS CIGARETTES, and CRYSTAL ADDICT (figurative) in class 34, covering (among other things) electronic cigarettes. SKE has challenged the validity of some of these marks via opposition and/or revocation proceedings.

On 18 September 2024, Bargain Busting issued infringement proceedings against SKE, alleging that SKE’s use of signs containing the word CRYSTAL (the CRYSTAL Signs) on vape products infringed its trade marks. Then, on 23 and 24 December 2024, Bargain Busting’s solicitors wrote to eleven of SKE’s distributors, wholesalers and/or retailers. The letters said Bargain Busting considered the use of the CRYSTAL Signs to be infringing and explained that Bargain Busting intended to apply to add those recipients as defendants in the main claim.

That kind of correspondence matters because sections 21A–21F of the Trade Marks Act 1994 create a cause of action for actionable (or unjustified) threats. A person aggrieved by threats of trade mark infringement can seek a declaration that the threats are unjustified, an injunction to stop them, and damages for any loss. The policy aim is to prevent rights holders from pressuring a competitor’s customers (sometimes with immediate commercial impact) without having to put their infringement case before the court. It was common ground between the parties that whether the letters were “justified” would depend (at least in part) on the validity of the marks relied on.

SKE applied on 21 January 2025 for an interim injunction to restrain further alleged actionable threats, which came before the court on 30 April. In response to the application, Bargain Busting invoked section 12 of the Human Rights Act 1998, which restricts the grant of pre‑trial relief that would restrain publication (and so engages freedom of expression):

“(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

…

(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

…”

At first instance, the judge held that the correct approach applying section 12(3) was as follows:

“… it appears to me that applications for injunctions in respect of allegedly unjustified threats will often fall within the exceptional category of cases identified by Lord Nicholls in Cream Holdings. The key question as far as the merits threshold is concerned is whether the court is satisfied the applicant’s prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. To require the higher threshold to be met in all such cases would to my mind undermine the protection intended by Parliament in enacting the unjustified threats provisions. A party may need to move quickly to seek such an injunction as losses can be rapid as the market is cleared. It would to my mind generally place too high a barrier in the way of applicants in such cases to require them to show that they will probably win at trial.”

On the (necessarily limited) evidence available at the interim stage, the judge assessed SKE’s prospects on the relevant marks as follows:

• CRYSTAL BAR: “While SKE was able to show a serious issue to be tried, I cannot conclude on the limited materials before me on this application that SKE has “a better than evens chance of success” on its section 5(4)(b) case” and “SKE has established no more than a standard serious issue to be tried” on its section 3(6) case;
• CRYSTAL CLEAR VAPOURS ELECTRONICS CIGARETTES: The judge was “satisfied that SKE has a realistically arguable case [of non‑use], which may well succeed at trial”; and
• CRYSTAL ADDICT (figurative): The judge could “conclude no more than that there is at least a serious issue to be tried in relation to it”.

Pulling those strands together, the judge held that, so far as section 12(3) was concerned, SKE’s prospects were “sufficiently favourable to justify” making the order in the circumstances. He therefore granted an interim injunction restraining Bargain Busting from making further threats.

Appeal

Bargain Busting appealed, arguing that the judge had applied the wrong legal test. Relying on Cream Holdings Ltd v Banerjee [2004] UKHL 44, it said that section 12(3) ordinarily requires the claimant to show it is more likely than not to succeed at trial before the court restrains publication.

Arnold LJ (with whom Laing LJ and Warby LJ agreed) accepted that submission. The Court of Appeal held that the first‑instance judge had not applied the general rule in Cream Holdings. In particular, because the judge had not found that SKE’s threats claim was more likely than not to succeed (and there was no respondent’s notice inviting the Court to uphold the injunction on that basis) the injunction could not stand. The interim restraint was therefore overturned.

Comment

The judgment makes clear that section 12(3) is not a mere ‘gloss’ and, if the relief sought would restrain publication (including letters to the trade), the court must grapple with the section and the merits threshold.